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HomeMy WebLinkAbout2019-12-16 BOS Packet - Released SELECTMEN'S MEETING Monday, December 16, 2019 Town Office Building, 1625 Massachusetts Avenue, Selectmen's Meeting Room 7:00 PM AGENDA PUBLIC COMMENTS Public comments are allowed for up to 10 minutes at the beginning of each meeting. Each speaker is limited to 3 minutes for comment. Members of the Board will neither comment nor respond, other than to ask questions of clarification. Speakers are encouraged to notify the Selectmen's Office at 781-698- 4580 if they wish to speak during public comment to assist the Chairman in managing meeting times. SELECTMAN CONCERNS AND LIAISON REPORTS TOWN MANAGER REPORT ITEMS FOR INDIVIDUAL CONSIDERATION 1. Citizens' Academy Graduation 7:10 p.m. 2. Update on the Westview Building Design 7:25 p.m. 3. Memorial Bench Donation on Minuteman Bikeway 7:40 p.m. 4. Solar Request For Proposal Contract Award 7:45 p.m. 5. Approval of Schematic Design of Police Station 7:55 p.m. 6. Proposal for New Noise By-Law- Construction Noise 8:15 p.m. 7. Safe Routes to School Update 8:20 p.m. 8. Presentation- 75th Anniversary of End of WWII Event 8:3 5 p.m. 9. Award Bid for Munroe Building Lease 8:50 p.m. 10.Tax Bill Insert 9:00 P.M. 11. Discuss Formation of Committee for 2 5 0th Anniversary of Battle of Lexington 9:05 p.m. 12.Update on Community Preservation Committee Annual Town Meeting 2020 9:10 P.M. 13. Special Permit Residential Development Zoning Bylaw Amendment Ad Hoc 9:20 p.m. Committee Update 14. Selectmen Committee Appointment and Reappointments 9:25 p.m. 15.Application: Common Victualler License- CHFP The Hangar, LLC d/b/a Craft 9:30 p.m. Food Hall Project, 3 Maguire Road 16.Application: Entertainment License -AB Inn's LLC d/b/a The Inn at Hastings Park, 9:35 p.m. 2027 Massachusetts Avenue 17.Application: Entertainment L is ens e - S tarb uc ks C o rp o ration d/b/a S tarb uc ks 9:40 p.m. Coffee# 8661 1729 Massachusetts Avenue 18.Annual License Renewals 9:45 p.m. CONSENT AGENDA 1. Water& Sewer Commitments 2. Water& Sewer Adjustment ADJOURN 1. Anticipated Adjournment 9:55 p.m. A Summit IIA Meeting of the Board of Selectmen, School Committee,Appropriation Committee, and Capital Expenditures Committee will be held on T hurs day, December 19, 2019 at 7:00 p.m. in the Cafeteria, Samuel Hadley Public Services Building, 201 Bedford Street. The next regularly scheduled meeting of the Board of Selectmen will be held on Monday, January 6, 2020 at 7:00 p.m. in the Selectmen's Meeting Room, Town Office Building, 1625 Massachusetts Avenue. Hearing Assistance Devices Available on Request All agenda time and the order of items are approximate and LezVfeilads subject to change. Recorded by LexMedia AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Citizens' Academy Graduation PRESENTER: ITEM NUMBER: Katharine L ab rec que, Management Fellow I.1 SUMMARY: Katharine Labrecque, Management Fellow from the Town Manager's Office, will review Lexington Citizen's Academy, a 9-week program now in its 11 th year in which residents meet once a week in the evenings to learn about local government, specifically, the role each department plays in serving the public. The goal of the program is citizen engagement, a key priority identified by the Board of Selectmen. The program is designed to connect residents with the Board of Selectmen and Town staff and to encourage participation on Town committees/boards and as Town Meeting members. SUGGESTED MOTION: N/A FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 7:10 p.m. ATTACHMENTS: Description Type so ,h m 2019 Lexington Citizens' AcademyGraduates Name Allen, Paul Armitage, Amy Capiau, Agnes Caravana, Bob Caruso, Jennifer Cole, Ben Dolcimascolo, Crystal Felton, Kristen Finnegan, Jodi Gadepally,, Vijay Grasso, Patty Gruskin, Daniel Hammond, Brian H ottot, Co ra l i e Jhalodwala, Nilofar Krishnan, Priya Messina,Tony Olt, Nancy Overton, Valerie Perkins, Stephen Puri, Anu Puri, Mohit Sayre, Emily Shnidman, Nathan Stoler, Paula Thesayi, Abi ra m i Usluel, Mine Valencia, Martha Walheker, Preeti Wang, April Xiao, Lanlan Zacharis, Jennifer AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Update on the Westview Building Design PRESENTER: ITEM NUMBER: Mike Cronin, Director of Facilities I.2 SUMMARY: Mike Cronin will be giving a presentation with the architect on the building design and while no vote of the Board of Selectmen is required, will be seeking a consensus of the Board to move this forward so that we're ready for the Annual Town Meeting 2020. SUGGESTED MOTION: None Required. 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CN CN _ w Cn �lr% M w V i Cu LU 0 0 z o N ~ w LLJ C� m J w w LL w IN 1 L I LE O 0 0 ii DC LM ® .. a i i M N � Z Co00 m cn 00lr% M W W r caLLI Z o N 0 0 V W W m J LM LLI LLI cn L) LL W r II .... umuuigpg�...............�a �., m II R.... ......... ray �s �a I 1713 rk c N LO CN cn C= (D 0 cu cu C/) Y c� > G) -4-0 O � CD p to C)X 0 0 >+ N 0') = Cam• N C= C/) � U O U N CO C/) (D co (D LU � CO U C0 V u N 0 0 i C/) E tn C6 �' LU W m 0 uu uu E m x -0 cn 0 Ci) LU � Qo O � 0-) � fn = L Q a E 0 OD 0 CD cn > 0 cn cn � 0 (D 1 =3 0 0cn U a< 0 0 cn CU m 0 cn Co CZ F 1.-0 cn E > in cn 0 M� -1--a 0 E Q N to cn 0 cB AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Memorial Bench Donation on Minuteman Bikeway PRESENTER: ITEM NUMBER: David Pinsonneault, Director of Public Works I.3 SUMMARY: Dave P ins o nneault, DPW Director has worked with the Bike Committee and a group that wanted to place a memorial bench for the individual that died last year in a collision on the bikeway. The DPW Director will present the information to the Board seeking approval of the location. SUGGESTED MOTION: Move that the B O S accept the donation of a bench to be placed along the bikeway at a location agreeable to DPW. FOLLOW-UP: Staff will work with the group to place the bench. DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 7:40 p.m. ATTACHMENTS: Description Type �. �1 r a / N r �! I I I 10, i r= r a„ , p a wr. o I ' r I, 3, i c , r. r f. r- fi Yy r� 0 / 7 „ � o r r r I r r�/yr �r o r7 � r rt u r I ar r � i p arrr ,y r I� 1 r nr; ry ri r r N r "f r , r 'r r/ I r a, pp d � I /f ,Jy , IIM1N i/% I %; r r ,Ir II I I r / I I 5 I�U I „„..rr ,.n<A� `b'.,r, I Y III lII �1,//,�i ,,U r',�,, OY�VII r�r N�✓b„��j�Ilye,Yl � �,I, �, r,.,�" s' �.l�.. r; <,n I 1 r r f' Y I �� ur r y AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Solar Request For Proposal Contract Award PRESENTER: ITEM NUMBER: Shawn Newell,Assistant Director of F acilities I.4 SUMMARY: Attached please find the updated presentation from Shawn Newell for this project, which has now been presented several times as it's moved forward. The project still requires approval by the Conservation C ommis s ion and this is in progress, approval from the School Committee, which it is now on an upcoming agenda and final approval by Town Counsel. The motion below for the Board's consideration is drafted subject to these items and any other approvals required, before the Town Manager may sign. SUGGESTED MOTION: Move to authorize the Town Manager to execute the agreements between Ameresco, LLC and the Town of Lexington related to the Solar RF P issued by the Town, subject to final approval by the School Committee authorizing the School Superintendent to sign the agreements, the Conservation Commission providing approval of the projects, for Town Counsel's sign off on the legal form of the agreements and any other permits required being obtained. FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 7:45 p.m. ATTACHMENTS: Description Type D Solarl�.,,ase Cbver Menlo D Mlerno to Selectrinen. ('...A.wer Mllerno D Solar PPA. 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(i IIIIIII �..]IIIII%; j�iiim/�r� is /L IIIIIIII I IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII (IIIIIIIIII ���, ICJ IG� r � 2 IIIIIIIIIIIII IIIIIIIIII G f r f e y ��/ y 1 , 114��y1" fJ � j/F I I I rl� 4 III f r (IIIIIIIIIIIII IIIIIIIIII IIIIIIIIII y s ff co ,OFF lrr IN iiii: co r u (III it l e I , r IIIIIIIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ��� �" F �� I IIIIIIIIIIIIIIII � �� � �� I IIII � r a IIIIIIIIIIIII �j /' 1- r i i I (n U) C/) U U) o 0 0 � E 0 0 0 U U � � � U c� > 0 CL CL co a� o � o U O > p O oC — Q m Q 0) Q c� aD OC o .— LL j 0 U — SAMPLE PILOT AGREEMENT—DRAFT December 2019 AGREEMENT FOR PAYMENT IN LIEU OF TAXES FOR REAL PROPERTY AND PERSONAL PROPERTY THIS AGREEMENT FOR PAYMENT IN LIEU OF TAXES FOR REAL PROPERTY AND PERSONAL PROPERTY(this"PILOT Agreement") is made and entered into as of , 2014 by and between Lexington Municipal Solar LLC, a Delaware limited liability company, ("Developer"), and the TOWN OF LEXINGTON, a municipal corporation duly established and located in the Commonwealth of Massachusetts (the "Town"). Developer and the Town are collectively referred to in this PILOT Agreement as the"Parties"and are individually referred to as a "Party" WHEREAS, Developer plans to build and operate several solar electric generating facilities (collectively, the "Project")with an expected aggregate nameplate capacity of approximately 1.1 megawatts (MW) (DC) (0.9 MW AC), or such reduced capacity as may be determined after the final design and engineering plans are completed, on certain Town-owned properties in Lexington, Massachusetts as more particularly shown in Exhibit A(the"Properties"); WHEREAS, the Parties have entered into a Solar Power Purchase Agreement ("PPA") and license agreement, which serves one or more municipal purposes; WHEREAS, the municipal purposes of the PPA and Project include the establishment of renewable energy facilities and the realization of savings in electricity costs through Net Metering Credits as provided M.G.L. c. 164, sections 138-140 and 220 CMR 18.00 et seq., as may be amended from time to time; WHEREAS, notwithstanding the above, the Parties acknowledge that under General Laws Chapter 59, §2B, the use of Town property in connection with a business conducted for profit or leased or occupied for other than public purposes, shall be valued, classified, assessed and taxed to the lessee in the same manner and to the same extent as if the lessee were the owner thereof in fee, and that therefore the Project and/or the Properties may be deemed subject to personal and/or real property taxes; WHEREAS, the Parties wish to avoid uncertainty as to the future real or personal property tax liability attributable to the Project that may be incurred by the Developer; WHEREAS, it is the intention of the Parties that Developer make levelized, annual payments to the Town for the term of this PILOT Agreement in lieu of real and personal property taxes on the Project, in accordance with General Laws Chapter 59, §3 8F (Acts of 1997 Chapter 164, Section 7 1(b)), as amended) and the Massachusetts Department of Revenue (DOR) Guidelines published in connection therewith; WHEREAS,because both Developer and the Town need an accurate projection of their respective expenses and revenues with respect to the real and personal property that is taxable under law, the Parties believe that it is in their mutual best interests to enter into this Agreement fixing the payments that will be made with respect to all taxable real and personal property incorporated {A0267266.4 0052 1 SAMPLE PILOT AGREEMENT—DRAFT December 2019 within the Project for the term of the Agreement; WHEREAS, the Parties intend that, during the term of the Agreement, Developer will not be assessed for any statutory real and personal property taxes to which it might otherwise be subjected under Massachusetts law, and this Agreement will provide for the exclusive payments in lieu of such real and personal property taxes that Developer(or any successor owner of the Project)will be obligated to make to the Town with respect to the Project during the term hereof,provided, however, that the Parties do not intend for this Agreement to affect any direct payments for services provided by the Town to the Project, including but not limited to,water and sewer services, and similar payment obligations not in the nature of real or personal property taxes or substitutes for such taxes that Developer may otherwise be obligated to pay the Town; and WHEREAS, the Town is authorized to enter into this Agreement with Developer, as the culmination of good faith negotiations that anticipate that the payments in lieu of real and personal property taxes over the life of the Agreement will amount to the equivalent,taking into account other benefits to be received by the Town in the PPA, of the property tax payments that would otherwise be determined under G.L. c.59 based upon the full and fair cash valuation of the Project. NOW THEREFORE, in exchange for the mutual commitments and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: 1. Payment in Lieu of Real and Personal Property Taxes. Developer agrees to make annual payments to the Town in lieu of real and personal property taxes on and after the Commercial Operation Date, as defined in the PPA between the Parties, in an annual fixed amount of Thirty Thousand Dollars ($30,000) for so long as the Town is required to assess real and personal property taxes with respect to the Licensed Area (as defined in the PPA) until the termination of the PPA. Within thirty (30) days following the Commercial Operation Date, a bill will be issued by the Town to the Developer,with the amount due and the payment due date noted on the bill(the due date of the payment shall be at least thirty(30)days after the date of the bill). The first annual PILOT payment shall be pro-rated based on the number of days remaining in the fiscal year from and after the Commercial Operation Date. Thereafter, each annual payment will be paid to the Town on or before February I of each fiscal tax year. The annual payment amount and payment due date will be noted on a bill issued by the Town to the Developer at least thirty(30) days prior to the due date. Upon the expiration of the term of the PPA and this PILOT Agreement(and not the earlier termination thereof,which shall be governed by the terms of Section 12 below), the Town shall reimburse the Developer a pro-rated amount of the PILOT for days remaining in the fiscal year after the date of expiration. Developer agrees that the payments in lieu of taxes under this Agreement will not be reduced on account of a depreciation factor, revaluation or reduction in the Town's tax rate or assessment percentage and the Town agrees that the payments in lieu of taxes will not be increased on account of an inflation factor,revaluation or increase in the Town's tax rate or assessment percentage. 2. Payment Collection. The provisions of General Laws Chapter 60 and other applicable law will govern the collection of any payments in lieu of taxes provided for in this Agreement as though they were real or personal property taxes due and payable to the Town. 3. Tax Status. The Town agrees that during the term of this PILOT Agreement, the Town will not assess Developer for any real estate and personal property taxes with respect to the Project or the Properties to which Developer might otherwise be subject under Massachusetts law, and the Town agrees that this Agreement will exclusively govern the payments of all ad valorem real estate and personal property taxes and payments in lieu of such taxes that Developer will be obligated to make to the Town with respect to the Project and the Properties,provided,however, that this Agreement is not IA0267266.4 0052 1 SAMPLE PILOT AGREEMENT—DRAFT December 2019 intended to affect, and will not preclude, other assessments of general applicability by the Town for excise taxes on vehicles due pursuant to General Laws Chapter 60A and for services provided by the Town to the Project, including but not limited to,water and sewer services. The Town agrees that no real or personal property taxes will be due from or assessed to Developer with regard to the Properties or the associated real or personal property other than the payments in lieu of taxes described in this PILOT Agreement. 4. Successors and Assigns. This Agreement will be binding upon the successors and assigns of Developer, and the obligations created hereunder will run with the Properties and the Project. In the event that Developer sells,transfers, leases or assigns the Properties or all or substantially all of its interest in the Project,this Agreement will thereafter be binding on the purchaser,transferee or assignee. A Notice of this Agreement will be recorded in the applicable Registry of Deeds forthwith upon execution. 5. Statement of Good Faith. The Parties agree that the payment obligations established by this Agreement were negotiated in good faith in recognition of and with due consideration of the full and fair cash value of the Project, to the extent that such value is determinable as of the date of this Agreement, and the other benefits to be received by the Town in the PPA in accordance with General Laws Chapter 59, §38H. Each Party was represented by counsel in the negotiation and preparation of this PILOT Agreement and has entered into this PILOT Agreement after full and due consideration and with the advice of its counsel and its independent consultants. The Parties further acknowledge that this PILOT Agreement is fair and mutually beneficial to them because it reduces the likelihood of future disputes over real and personal property taxes, establishes tax and economic stability at a time of continuing transition and economic uncertainty in Massachusetts and the region, and fixes and maintains mutually acceptable, reasonable and accurate payments in lieu of taxes for the Project that are appropriate and serve their respective interests. The Town acknowledges that this Agreement is beneficial to it because it will result in mutually acceptable, steady, predictable, accurate and reasonable payments in lieu of taxes to the Town. Developer acknowledges that this Agreement is beneficial to it because it ensures that there will be mutually acceptable, steady,predictable,, accurate and reasonable payments in lieu of taxes for the Project. 6. Additional Documentation and Actions. Each Party will, from time to time hereafter, execute and deliver or cause to be executed and delivered, such additional instruments, certificates and documents, and take all such actions, as the other Party reasonably requests for the purpose of implementing or effectuating the provisions of this Agreement and,upon the exercise by a Party of any power, right,privilege or remedy pursuant to this Agreement that requires any consent, approval, registration, qualification or authorization of any third party, each Party will execute and deliver all applications, certifications, instruments and other documents and papers that the exercising Party may be so required to obtain. 7. Invalidity. If, for any reason, including a change in applicable law, it is ever determined that this Agreement is invalid,then this Agreement shall terminate as of the date of such determination, and the Properties and Project will thereafter be assessed and taxed as though this Agreement does not exist. The Parties will cooperate with each other, and use reasonable efforts to defend against and contest any challenge to this Agreement by a third party. 8. Notices. All notices, consents, requests, or other communications provided for or permitted to be given hereunder by a Party must be in writing and will be deemed to have been properly given or served upon the personal delivery thereof,via courier delivery service or otherwise. Such notices shall be addressed or delivered to the Parties at their respective addresses shown below. IA0267266.4 0052 1 SAMPLE PILOT AGREEMENT—DRAFT December 2019 To Developer: Lexington Municipal Solar LLC I I I Speen Street, Suite 410 Framingham, MA 0 17 01 Attention: General Counsel To Town: Town Manager Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 Any such addresses for the giving of notices may be changed by either Party by giving written notice as provided above to the other Party.Notice given by counsel to a Party shall be effective as notice from such Party. 9. Applicable Law. This Agreement will be made and interpreted in accordance with the laws of the Commonwealth of Massachusetts. Developer and the Town each consent to the jurisdiction of the Massachusetts courts or other applicable agencies of the Commonwealth of Massachusetts regarding any and all matters, including interpretation or enforcement of this Agreement or any of its provisions. 10. Good Faith. The Town and Developer shall act in good faith to carry out and implement this Agreement. 11. Force Majeure/ Casualty. The Developer and Town both recognize that there is the possibility during the term of this Agreement that all or a portion of the Property or Project may be damaged or destroyed or otherwise rendered unusable due to events beyond the control of either Party on account of"Force Majeure 91)or"Facility Loss"(as those terms are defined in the PPA). In the event of an event of Force Majeure or a Facility Loss during the term of this Agreement with respect to any portion of the Properties or Project that renders the Properties or Project unusable for the customary purpose of the production of electricity, and the Developer requests a reduction in its payment in lieu of taxes under this Agreement, a pro rata adjustment for the number of days of such Force Majeure or Facility Loss period shall be made in the PILOT bill in the next ensuring fiscal year. 12. Early Termination. The Developer's PILOT obligation shall be reduced in all or in any proportional part due to the early termination of the PPA in whole or with respect to one or more, but not all of the Properties. 13. Covenants of Developer. During the term of the Agreement, Developer will not voluntarily do any of the following: a. seek to invalidate this Agreement, or otherwise take a position adverse to the purpose or validity of this Agreement, except as expressly provided herein; or b. convey,without the express consent of the Town,by sale, lease or otherwise any interest in the Licensed Area to any entity or organization that qualifies as a charitable organization pursuant to General Laws Chapter 59, §5 (Third). IA0267266.4 0052 1 SAMPLE PILOT AGREEMENT—DRAFT December 2019 14. Covenants of the Town. So long as Developer is not in breach of this Agreement during its term, the Town will not do any of the following: a. seek to invalidate this Agreement or otherwise take a position adverse to the purpose or validity of this Agreement; b. seek to collect from Developer any property tax upon the Licensed Area or the improvements thereon(including the Project)in addition to the amounts herein; C. impose any lien or other encumbrance upon the Licensed Area or the improvements thereon (including the Project) except as is expressly provided herein; IA0267266.4 0052 1 SAMPLE PILOT AGREEMENT—DRAFT December 2019 Executed under seal by the undersigned as of the day and year first written above,each of whom represents that it is fully and duly authorized to act on behalf of and bind its principals. TOWN OF LEXINGTON James Malloy Title: Town Manager LEXINGTON MUNICIPAL SOLAR LLC By: Name: Title: JA0267266.4 0052 1 SAMPLE PILOT AGREEMENT—DRAFT December 2019 EXHIBIT A Description of Property {A0267266.4 0052 1 DRAFT 12-12-19 SOLAR POWER AND STORAGE LEASE AGREEMENT BY AND BETWEEN THE TOWN OF LEXINGTON AND LLC This LEASE(as amended,modified or supplemented from time to time,the"Lease")made this day of , 2019 (the "Effective Date"), is by and between the Town of Lexington, a municipal corporation organized and existing under the laws of the Commonwealth of Massachusetts, (hereinafter the "Lessor" or "Customer") and LLC, a Delaware limited liability company, with a usual business address of 111 Speen Street, Suite 410, Framingham, MA 01701,hereinafter"Lessee" or"Provider"). Lessor and Lessee may be referred to individually as a "Party" and collectively, as the "Parties". RECITALS A. The Parties intend to enter into a Solar Power and Storage Services Agreement (as same may be amended or modified from time to time, the "PPA"), pursuant to which the Lessee shall design, engineer, construct, install, operate and maintain certain solar photovoltaic systems for the production of electricity and corresponding Net Metering Credits or On Bill Credits ("System"), to be further defined in the PPA. B. In order to design, engineer, construct, install, operate and maintain the System and System Assets, Lessee requires access to and use of Lessor's Property (as hereinafter defined). C. Lessor owns the Property, and in connection with the foregoing, Lessor desires to lease the Leased Premises(described below)to Lessee in furtherance of Lessee's obligations under the PPA, and Lessee is willing to accept such Leased Premises from Lessor. NOW, therefore, in consideration of the foregoing and the mutual covenants and agreements herein contained, the Parties agree as follows: ARTICLE 1. Definitions. Capitalized terms in this Lease shall have the meaning provided for hereunder or, if no definition is provided hereunder, the meaning provided for such capitalized term under the PPA. ARTICLE 2. Lease of Property; Other Rights. A. The Lessor does hereby lease, demise and let unto Lessee, subject to the terms and conditions in this Agreement, and Lessee does hereby take, accept and lease from Lessor certain space at and on the following property: a portion of the [ROOF/CANOPY AREA] located at [INSERT PROPERTY ADDRESS] (the"Property"), such leased space referred to as the"Leased Premises". Once the exact square footage of Leased Premises has been established following construction of the System and System Assets, the Parties shall amend this Agreement with site plans or legal descriptions to more specifically identify the Leased Premises. {A0648296.1} 1 DRAFT 12-12-19 A general depiction of the proposed Leased Premises at each Property as of the Effective Date is set forth on Exhibit A. The Leased Premises are leased to Lessee together with the rights described in this Lease. B. Lessor hereby grants to Lessee and Lessee's agents, contractors, subcontractor, employees, and consultants ("Lessee Parties") the non-exclusive use of such additional space at each Property for the design, development, installation, operation and maintenance of utility lines, cables, conduits, transformers, wires, meters, monitoring equipment and other necessary equipment and appurtenances ("CablinLy Space") wherever located, whether between and among the floors of the buildings located on the Property, the rooftop/canopy space, the Delivery Point, and all necessary electrical and other utility sources located within each building or on the Property. The location of the Cabling Space shall be mutually agreed upon by the Parties. C. Lessor hereby grants to Lessee and Lessee Parties the non-exclusive rights of vehicular and pedestrian ingress and egress from all public right-of-ways over the Property to and from the respective Leased Premises and Cabling Space during normal business hours, and, upon reasonable advance coordination with Lessor, outside of normal business hours. D. Lessor hereby grants to Lessee and Lessee Parties the temporary use of reasonably sufficient additional space on properties owned by Lessor near the Leased Premises for construction laydown, storage of construction materials, parking of construction crew vehicles and trailers, and for the removal of the System, and System Assets such area to be agreed upon by the Parties prior to construction or removal, as the case may be. Lessor, in consultation with Lessee, shall designate such additional space for Lessee's use when construction commences. E. Lessor hereby grants to Lessee and Lessee Parties the use of Lessor's water supply already available at the Property, at no additional cost to Lessee, for purposes of clean up during construction. F. Lessee accepts the Leased Premises in the condition or state in which the Leased Premises now are without any representation or warranty, express or implied in fact or by law, by Lessor and without recourse to Lessor, as to the title thereto, the nature, condition or usability thereof or the use or uses to which the Leased Premises or any part thereof may be put, subject, however, to such representations and warranties specifically provided herein. G. Except as expressly set forth herein, the Parties acknowledge and agree that Lessor shall not be required prior to or during the Term to make any expenditure, incur any obligation, or incur any liability of any kind whatsoever in connection with this Agreement or the ownership, installation, operation, maintenance, repair reconstruction or removal of the System or System Assets. H. The Leased Premises shall be used for the sole and exclusive purpose of conducting the use, occupation, and enjoyment of the Leased Premises by Lessee to design, procure, install, test, commission, own, operate, maintain, expand and remove the System and {A0648296.1} 2 DRAFT 12-12-19 System Assets, all of which are designed and intended for the purpose of producing solar- generated electricity in accordance with Applicable Law (the "Permitted Use"). Except with the prior express written consent of Lessor, Lessee shall not use the Leased Premises or the Property for any use other than the Permitted Use. I. Lessee acknowledges and understands that this Agreement and all rights of Lessee are subject and subordinate to all existing leases, easements, rights of way, declarations, restrictions, permits, or other matters of record and all existing agreements of the Lessor with respect to the Property. Lessee acknowledges and understands that the Lessor reserves the right to grant additional leases, easements, or rights of way, whether recorded or unrecorded, as may be necessary, which do not unreasonably interfere with Lessee's use of the Property, the insolation at the Leased Premises and the operation of the System. Lessor shall provide Lessee with reasonable notice in the event that Lessor grants such additional rights on the Property to a third party. Notwithstanding any term to the contrary contained herein, Lessor shall provide Lessee with a Commercially Reasonable Subordination,Non-Disturbance and Attornment Agreement for any and all existing and future mortgagees and tenants of the Property. J. The Property is demised subject to the following: 1. any encumbrances in the chain of title for the Property; 2. present and future zoning laws, ordinances, bylaws, resolutions, and regulations of the municipality in which the land lies, and all present and future ordinances, laws, regulations, and orders of all boards, bureaus, commissions, and bodies of any municipal, county, state, or federal authority, now or hereafter having jurisdiction, so long as they permit or otherwise regulate the use of the Property for the Permitted Use (as defined in Section 2.H); 3. the condition and state of repair of the Property as the same may be on the Effective Date; 4. all electric and telecommunication cable or wireless services charges, accrued or unaccrued, fixed or not fixed, from and after the Effective Date arising as a result of the construction and operation of the System or any appurtenant facilities or improvements associated with the Permitted Use; 5. full compliance by the Lessee with all Applicable Laws; and 6. Lessor's reserved uses, set forth in Exhibit A-1. ARTICLE 3. Term; Rent; Taxes. A. The term of this Lease ("Term") shall begin on the Effective Date, run concurrently with the term of the PPA and terminate on the date the PPA terminates. {A0648296.1} 3 DRAFT 12-12-19 B. Lessee shall pay to Lessor annual rent of One Dollar($1.00), payable on the Effective Date and thereafter on or before each subsequent anniversary of the Effective Date throughout remainder of the Term. Rent shall be paid by wire or by check made payable to the Town of Lexington, 1625 Massachusetts Avenue, Lexington, MA 02420. C. The Parties shall enter into a payment in lieu of taxes agreement ("PILOT Agreement") under the authority of and in accordance with General Laws Chapter 59, §38H, as amended, prior to the assessment of any such tax to establish a stable, levelized payment structure regarding payment of such taxes for the Term. That PILOT Agreement shall be executed herewith. ARTICLE 4. System Construction, Installation, Operation and Maintenance. A. Lessor consents to the design, development, installation, construction, operation, testing, maintenance, repair, painting, replacement and removal of the System, and System Assets by Lessee on the Leased Premises including, without limitation, solar panels, mounting substrates, supports, wiring and connections, power inverters, service equipment, metering equipment, parking canopy carport structures, and utility interconnections. The Lessee shall perform a structural analysis of the Property to confirm the structural suitability of the roofs, parking canopy carport structures, and related structures for construction and operation of the Systems, and System Assets. B. The design of the Systems and System Assets shall not include any rooftop penetrations unless (i) the Lessor agrees in writing to specific rooftop penetrations in specific locations and (ii) no such rooftop penetrations reduce any existing rooftop warranties. C. Prior to the commencement of construction, Lessee shall coordinate with and receive input from the Lessor's designated technical staff and submit final design drawings for the Systems and System Assets for approval by the Lessor, such approval not to be unreasonably withheld, conditioned or delayed. Lessee shall construct the Systems and System Assets in accordance with Applicable Law. D. Damage. Any damage done to the Property, Leased Premises, or other property not belonging to Lessee during installation or during operations which is directly caused by Lessee shall be repaired at Lessee's expense as soon as practicable, but no later than thirty (30) days after notification of damage, or sooner if immediate repair is required to prevent further damage to such property. 1. Lessee shall take good care of the Leased Premises and the Systems, conduct all required maintenance and make all repairs to the Systems, ordinary and extraordinary, foreseen and unforeseen; and shall maintain and keep the Leased Premises and the Systems in good condition in compliance with all Applicable Legal Requirements and industry standards, provided that Lessee shall not be obligated to make capital repairs to the Leased Premises not related to damage caused by the Lessee in the installation or operation of the Systems. {A0648296.1} 4 DRAFT 12-12-19 2. Lessor shall have no duty or liability to Lessee with respect to the maintenance and repair of the Systems. E. Lessee shall have the following rights during the Term hereof: 1. To develop, design, engineer, construct, install, operate, maintain, modify and upgrade the System and System Assets on the Leased Premises, subject to the terms and conditions of this Lease and the PPA; and 2. To clean, repair,paint, replace and remove and dispose of part or all of the System and System Assets as Lessee, in its reasonable discretion, determines to be necessary. F. Lessor acknowledges and agrees that notwithstanding the System's and System Assets' presence on the Property, Lessee is the exclusive owner and operator of the System and System Assets, Lessor has no ownership or other interest in the Systems, System Assets, or other equipment or personal property of Lessee installed on the Property, and Lessee may remove all or any portion of the Systems, System Assets or other equipment or personal property at any time if such removal is in compliance with this Lease and the PPA. G. Lessee shall obtain at its sole cost all Governmental Approvals required for Lessee's use of the Property, the Permitted Use, and the System from any and all Governmental Authorities having jurisdiction in the matter. Lessee shall promptly inform Lessor of all significant developments relating to the issuance of such Governmental Approvals. Lessor shall reasonably cooperate with Lessee in procuring such Governmental Approvals. If any changes in plans and/or specifications for the System are required by any Governmental Authority, then Lessee shall submit such changes, if any, to Lessor for its approval, which shall not be unreasonably withheld. H. Lessee shall not file or permit to be filed any mechanics liens or similar liens against Lessor or the Leased Premises for its work performed in accordance with this Agreement, and this requirement shall flow down to all of Lessee's contractors. If any mechanic's, laborer's or materialman's lien shall at any time be filed against the Property, the Leased Premises or the System, then Lessee, within ten (10) days after notice to Lessor of the filing thereof, shall cause such lien to be discharged of record by payment, deposit, bond, insurance, order of court of competent jurisdiction or otherwise. If Lessee fails to cause such lien to be discharged within the period aforesaid, then, in addition to any other right or remedy, Lessor may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding. Any amount so paid by Lessor and costs and expenses, including court costs and attorney's fees reasonably incurred by Lessor in connection therewith, together with interest thereon at the Stated Rate from the respective dates of Lessor's making of the payment of the cost and expenses, shall be paid by Lessee to Lessor within ten (10) Business Days of Lessor's invoice therefor. {A0648296.1} 5 DRAFT 12-12-19 ARTICLE 5. Further Maintenance and Operations A. Lessee shall repair all damage to the Property to the extent caused by or relating to Lessee's construction, installation, operation, maintenance and removal of the System and System Assets. Lessee shall keep the Leased Premises in good order and condition. B. During the Term, Lessor shall maintain in good operating condition and repair the Property including foliage, vegetation, structural elements and all building systems (including but not limited to, the foundations, exterior walls, structural condition of interior bearing walls, roof, fire sprinkler, electrical system(but not including the System), and utility systems). All maintenance of the Properties shall be the responsibility of Lessor, except for maintenance of the System and System Assets, which shall be Lessee's responsibility. C. Lessee shall properly maintain the System and System Assets in good order and working condition, appearance and in compliance with all industry standards and Applicable Laws. Prior to making any alterations or improvements to a Property after the Commercial Operation Date, Lessee shall obtain the Lessor's consent in accordance with Section 4(c), which shall not be unreasonably conditioned, withheld or delayed. The Lessee shall deliver a maintenance report annually to the Lessor. Lessee shall be responsible for all costs related to the Systems, including, but not limited to, those costs necessary to construct, operate, maintain, repair, and remove the Systems. D. Lessee shall operate, maintain and repair the Systems in a manner that will not unreasonably obstruct or interfere with Lessor's use of the Property or the rights of any other occupants' permitted use of the Property, as set forth in Exhibit A-1 to this Lease. In the event interference occurs, Lessee agrees to take all Commercially Reasonable steps necessary to eliminate such interference promptly, but no later than thirty(30) days from notification by the Lessor. The Lessee acknowledges and agrees that Lessor may have continued operation or maintenance responsibilities at the Leased Premises to be conducted at the sole expense of the Lessor, and Lessee will use Commercially Reasonable efforts to cooperate with Lessor's prosecution and completion of such work. ARTICLE 6. Statutory and Regulatory Compliance A. Lessee shall comply with all provisions of Applicable Law in connection with the construction, operation and maintenance of the System and System Assets by Lessee and its contractors, subcontractors, employees and agents. ARTICLE 7. Access to Leased Premises A. Lessee and its sub-contractors, agents, consultants and representatives shall conduct all work on the Property pursuant to this Lease (including planning, constructing, operating, inspecting, maintaining, painting, replacing, repairing and removing, the System and System Assets) during hours authorized by the Lessor through its Department of Public Facilities. Lessee and its sub-contractors, agents, consultants and representatives, and any other person entering the Property on their behalf, shall present a valid drivers' license for photo {A0648296.1} 6 DRAFT 12-12-19 identification to security staff at the Property before entering. During any such activities, Lessee, and its sub-contractors, agents, consultants and representatives, shall comply with Lessor's reasonable safety and security procedures (as may be promulgated from time to time and communicated to Lessee in writing), and Lessee and its sub-contractors, agents, consultants and representatives shall conduct such activities in such a manner and such a time and day as to minimize interference with Lessor's activities to the extent reasonably practicable. Notwithstanding anything in this Lease or PPA to the contrary, Lessee shall be allowed immediate access to the Leased Premises and the System and System Assets in connection with any emergency condition then existing with respect to the System and System Assets that could reasonably be expected to pose an imminent threat to the safety of persons or property, including the System and System Assets. B. Lessor shall not cause or permit any material interference with (i) the insolation to the System and the Leased Premises or(ii) access to sunlight to the System and the Leased Premises. Lessor shall not (x) build or cause to be built any structure or, to the extent within its reasonable control to prevent, permit any third party to build any structure, or (y) cause or permit the presence of any vegetation or airborne or particulate matter on, over, or about the Leased Premises that could, in either case of(x) or(y), materially block or interfere with the System's access to sunlight. Upon request of Lessee, Lessor shall cause any trees or other vegetation on the Leased Premises to be pruned or trimmed to the point that they do not obstruct the passage of direct solar radiation across the Leased Premises to the System to a degree greater than on the Effective Date, unless in the reasonable judgment of Lessor's employees or agents, such pruning or trimming would not be authorized by Applicable Laws or if such pruning or trimming is not authorized by a Governmental Authority. Lessee shall have the right to enforce Lessor's rights under any Applicable Law protecting solar energy systems from obstruction. Lessor shall cooperate with any efforts by Lessee to enforce such rights. C. Lessor covenants that Lessee shall peaceably and quietly have, hold and enjoy its leasehold interest in the Leased Premises during the Term in accordance with this Lease and the PPA. D. Upon notice to Lessee, Lessor may conduct checks of the Criminal Offender Record Information (CORI) maintained by the Massachusetts Criminal History Facilities Board, and the Sex Offender Record Information (SORI) maintained by the Massachusetts Sex Offender Registry Board for any officer or employee of the Lessee or of a subcontractor or any person who will work on the System on the Property. The Lessor may refuse to allow any such person to work on the Property if the Lessor, in its sole discretion, determines that such person is not suitable for work on the Property based upon the results of such CORI or SORI. All Lessee employees and subcontractor employees who will work on the Property shall complete forms related to a CORI and SORI and present identification at the Lexington Department of Public Facilities, 201 Bedford Street, Lexington, MA 02420, which Lessor may rely upon to initiate a CORI and SORI search. Such CORI and SORI checks must be updated every three years. E. Employees and agents of the Lessee and the Lessee's contractors and subcontractors (including installers) shall avoid interaction with students and teachers. In addition, the employees and agents of the Lessee and the Lessee's contractors and subcontractors {A0648296.1} 7 DRAFT 12-12-19 shall avoid interaction with Lessor's employees not directly involved in providing Lessee access to the Property, unless interaction with such employees is authorized in this Agreement or by the Superintendent or School Principal. The Lessor shall have the right to require that the Lessee permanently remove from the Property any of its or its contractor's or subcontractor's employees on account of inappropriate interaction with students, including but not limited to the use of vulgar language, sexually suggestive statements and any inappropriate physical contact. ARTICLE 8. Eminent Domain; Project Relocation. A. If part of the Property is taken by eminent domain or by way of condemnation such that the balance of such Property remains unsuitable for Lessee's use and operation of the applicable System, as reasonably determined by Lessee, then the Parties shall meet to discuss a mutually agreeable alternative arrangement for operation of such System and System Assets. If no alternative arrangement is acceptable to Lessee, then Lessee may terminate this Lease in part with respect to the affected Property. B. If the entirety of a Property shall be taken by right of eminent domain, the Lease shall terminate with respect to the affected Property as of the time that possession is required by the taking authority. Lessor reserves, and the Lessee grants to the Lessor, all rights which the Lessee may have for damages or injury to the Leased Premises for any taking by eminent domain, except for damage to the Lessee's fixtures, property, or equipment, including the affected System and System Assets. The Parties will be entitled to share in the condemnation proceeds in proportion to the values of their respective interests in the Property, which for Lessee will include, where applicable, the value of the affected System and System Assets, moving expenses, prepaid rent, and business dislocation expenses. C. Lessee acknowledges that Lessor may need to temporarily remove or relocate all or a portion of the System in order to perform routine or necessary building maintenance, including, but not limited to, repair or replacement of the roof of the Property. Unless such maintenance is necessitated as a result of installation or operation of the System (in which case the Lessee shall be solely responsible): 1. Lessor will provide Lessee with at least thirty (30) days prior written notice of its intent to temporarily relocate (except in the case of an Emergency, in which case notice shall be given as soon as practical); 2. In such notice, Lessor will certify that Lessor's requested removal or relocation of the System is required to perform routine or necessary building maintenance and Lessee will have no obligation to temporarily remove or relocate all or a portion of the System unless the Lessor provides such certification; 3. Lessor will be responsible for any and all actual, documented, reasonable costs incurred in the relocation of all or a portion of the System to and from the temporary location, including any temporary storage costs; 4. any such relocation shall be performed by Lessee; {A0648296.1} 8 DRAFT 12-12-19 5. Lessor may not request more than one relocation per Contract Year; and 6. in the event that a temporary relocation, is for longer than 240 daylight hours or if there has already been at least one relocation during the Term, Lessor shall promptly pay Lessee for any lost revenue during the relocation accrued after the first 240 daylight hours of the first relocation (for the first 240 daylight hours of any first relocation during the Term, Lessor shall not be responsible for any lost revenue to Lessee). Such lost revenue shall be based on Solar Service (as defined in the PPA) that would have been produced during the time period of the relocation as estimated by PVWatts Calculator, or similar recognized method using accurate data inputs for the parameters of the System and its location. Lessor agrees to work in good faith to minimize the timing of a temporary removal or relocation of the System. For purposes of this Section, "Emergency" shall mean any Force Majeure event, condition or circumstance at or affecting the Premises that would, in the reasonable opinion of Lessor, materially and substantially harm life or property on the Premises without immediate preventative or remedial action. It being acknowledged by Lessor that Lessor shall not operate the System, except in the case of an Emergency where immediate action on the part of the Lessor is reasonably necessary for safety reasons. In the event of an Emergency where immediate action on the part of Lessor is reasonably necessary for safety reasons, Lessor may,but is not obligated to, shut down or disconnect the System and provide notice to Lessee as soon as reasonably possible, and in any event within twenty-four(24)hours following such emergency, but otherwise Lessor shall not be permitted to perform any maintenance or repair or on the System or relocate any System. Any lost production resulting from Lessor's Emergency shutdown or disconnect shall not be the subject of a claim for lost revenue by Lessee unless Lessor does not notify Developer as required in this subsection. D. Lessor may request to move the System to another location on the Property or to another site owned by Lessor, but any such relocation shall be subject to the approval of Lessee and Financing Party, not to be unreasonably withheld provided the alternate location or site structurally supports the System and the System is capable of generating substantially equivalent amounts of electric energy when installed at the alternate site and would entitle Lessee to substantially equivalent Environmental Incentives as the original location and provided that the PPA is amendment to adjust the Solar Services Rate to account for any change in the available insolation, production and loss of Environmental Incentives. In connection with such relocation, Lessor shall execute an amendment to this Agreement reflecting the new location of the System but otherwise continuing all the terms and conditions of this Agreement for the remaining term of this Agreement. Lessor shall also provide any consents or releases required by Lessee in connection with the new location. Lessor shall pay all costs associated with the removal and relocation of the Project, including installation and testing costs and interconnection costs. E. In addition, starting at the shutdown of the System pursuant to such relocation, and ending at the commercial operation of the System when such relocated System is reinstalled at a new location (the "Relocation Event"), Lessor will pay Lessee an amount equal to the sum of (1) payments that Lessor would have made to Lessee hereunder for Solar Services that would have been produced by the System following the Relocation Event; (11) revenues that Lessee would have received with respect to the System under applicable solar programs and any other {A0648296.1} 9 DRAFT 12-12-19 assistance program with respect to electric energy that would have been produced following the Relocation Event; and(iii) revenues from Environmental Attributes that Lessee would have received with respect to Solar Services that would have been produced by the System following the Relocation Event. Determination of the amount of energy that would have been produced following the Relocation Event shall be based, during the first Contract Year, on the estimated levels of production and, after the first Contract Year, based on actual operation of the System in the same period in the previous Contract Year, unless Lessee and Lessor mutually agree to an alternative methodology. ARTICLE 9. Defaults and Remedies; Termination. A. Defaults and Remedies. If either Party breaches any material term of this Lease the non-defaulting Party shall provide written notice to the defaulting Party describing the nature of the default (a "Default Notice"). Following the receipt of a Default Notice (a) if such breach is capable of being cured within thirty (30) days after notice of such breach, the defaulting Party shall cure the breach within such thirty (30) day period, or(b) if the defaulting Party has diligently commenced work to cure such breach during such thirty (30) day period but additional time is needed to cure the breach, the defaulting Party shall cure such breach within one hundred and twenty (120) days from the date of receipt such Default Notice (such uncured default, following expiration of notice and cure periods, an "Event of Default". Upon an Event of Default, the non-defaulting Party shall have the remedies as provided in the PPA. B. Unless Lessor has exercised the Purchase Option under the PPA, within one hundred twenty(120) days after termination of this Lease, Lessee shall remove the applicable System and System Assets, and any of its vehicles, equipment or other materials (collectively, the "Removal Items"), repair any damage to the Property caused by such removal, and return the Property to its original condition as of the Effective Date. In connection with such removal, Lessor shall continue to provide Lessee and Lessee Parties with access to the Property without payment of any additional rent for a period of 120 days. Lessee shall maintain all insurance required under this Lease and any security for the cost of removal required under the PPA until removal of the applicable System and System Assets is complete. C. Unless Lessor has exercised the Purchase Option under the PPA, if Lessee shall fail to remove the Removal Items, and/or repair any damage to the Property caused by such removal after one hundred twenty (120) days after termination of this Lease, the Lessor may, upon thirty (30) days written notice to the Lessee, remove the Removal Items and/or repair any damage caused by removal of the Removal Items and Lessee shall reimburse Lessor for all of Lessor's related costs including reasonable attorneys' fees. ARTICLE 10. Assignment. A. This Lease and the rights and obligations under this Lease shall be binding upon and shall inure to the benefit of Lessee and Lessor and their respective successors and permitted assigns. Except as provided in this Lease, neither Party shall have the right to assign or transfer, whether voluntarily or by operation of Applicable Law, any of its rights, duties or obligations under this Lease without the prior written consent of the other Party, which consent shall not be {A0648296.1} 10 DRAFT 12-12-19 unreasonably withheld or delayed. Any purported assignment in violation of this Article 10 shall be null and void ab initio. B. Lessee Assignment. Except as otherwise provided by this Agreement, Lessee shall not assign or transfer, whether voluntarily or by operation of law, any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, provided that, in the case of an assignment or transfer by the Lessee, Lessor may withhold consent to any assignee of Lessee who does not demonstrate to Lessor's reasonable satisfaction that it has demonstrable experience in operating and maintaining solar photovoltaic systems and storage systems comparable to the Systems, and has demonstrable financial capability to maintain the Systems, the performance guarantees and the Decommissioning Assurance and fulfill the other obligations of Lessee hereunder. Lessee's assignee shall agree in writing to be bound by the terms and conditions of this Agreement. Lessee agrees to reimburse Lessor for all documented reasonable out of pocket costs associated with review and approval of Lessee assignments, including but not limited to reasonable attorneys' fees. Notwithstanding any contrary provisions contained in this Lease, including without limitation Section 10(A), Lessor specifically agrees, without any further request for prior consent but with advance written notice to Lessor which will identify any such assignee, to permit Lessee to assign, transfer or pledge its rights under this Lease and its rights and title to the System for the purpose of obtaining financing or refinancing in connection with the System (including, without limitation, pursuant to a sale-leaseback or partnership flip transaction or any debt financing) and to sign any consent, agreement, amendment or estoppel reasonably requested by Lessee or its Designated Third Parties to acknowledge and evidence such agreement; provided, however, that such agreement does not adversely affect the rights of Lessor or materially alter the obligations owed to Lessor under the terms of this Lease. C. Lessor Assignment. Lessor shall not assign this Agreement without the prior consent of Lessee, such consent not to be unreasonably withheld, provided, however, that any such assignment shall be made subj ect to the terms and provisions of this Agreement. Lessor shall promptly provide Lessee a copy of the assignment document following any assignment. D. Notice of Proposed Assignments. The Party proposing assignment shall deliver notice to the non-assigning Party not less than thirty (30) days in advance of any proposed assignment. ARTICLE II. Representations and Warranties of Lessor A. Authorization; Enforceability. The execution and delivery by Lessor of, and the performance of its obligations under, this Lease: (1) have been duly authorized by all necessary action and do not and will not require any further consent or approval of any other person, (11) and do not contravene any provision of, conflict with or constitute a breach or default under any indenture, mortgage, material agreement binding on Lessor, any valid order of any court, or regulatory agency or other body having authority to which Lessor is subject, or any Applicable Law, including but not limited to, competitive bidding, public notice, open meetings, or prior {A0648296.1} 11 DRAFT 12-12-19 appropriation requirements. This Lease constitutes the legal, valid, and binding obligation of Lessor and its successors and assigns, enforceable against Lessor in accordance with its terms, except as may be limited by bankruptcy, reorganization, insolvency or laws relating to or affecting creditors' rights generally. No suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against Lessor that would have a material adverse effect on the validity or enforceability of this Lease or the ability of Lessor to fulfill its commitments hereunder. B. Lessor's Title to Property. Lessor represents and warrants that it owns fee title to each Property. To the extent that, after the Effective Date, any third party has a record interest in the Property or any other claim, lien, encumbrance or right of possession on or against the Property or Leased Premises, Lessor will take reasonable efforts to obtain consents, non- disturbance agreements or other written documents as Lessee may reasonably request in order to evidence the consent of such third party to the transactions contemplated by this Lease and the acknowledgement by such third party of the right, title and interest of Lessee in and to the Property and the System. C. No Interference with and Protection of System. Lessor will not conduct activities on, in or about the Property that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System or operation thereof. Nothing contained in this provision shall preclude Lessor from conducting the maintenance and repair, as needed, of the Property, or snow removal by Lessor in cases of snow loading that could affect the integrity of roofing or on the parking lots; provided, that Lessor shall not remove snow from the surface of the photovoltaic modules. Notwithstanding the foregoing, the Lessor shall have the right to remove snow on parking lots underneath canopies, as needed. D. Maintenance of Leased Premises. Subject to the terms and conditions hereof, Lessor shall have full access and use of the Leased Premises, including but not limited to access for the purpose of maintenance and repair, so long as such access and use does not unreasonably interfere with Lessee's use of the Leased Premises for the System and System Assets. E. Premises Conditions. Lessor represents and warrants to Lessee that Lessor is unaware of any site conditions (a) that would materially increase the cost of installing any System and System Assets at the planned locations on the Property(b) that would adversely affect the ability of any System or System Assets as designed to produce electricity once installed, absent conditions beyond Lessor's reasonable control. The Parties acknowledge Lessee's obligation under Section 4 above to conduct a structural analysis of the Leased Premises. ARTICLE 12. Representations and Warranties of Lessee A. Authorization; Enforceability. The execution and delivery by Lessee of, and the performance of its obligations under, this Lease have been duly authorized by all necessary action, do not and will not require any further consent or approval of any other person, and do not contravene any provision of, or constitute a default under any indenture, mortgage or other material agreement binding on Lessee or any valid order of any court, or regulatory agency or {A0648296.1} 12 DRAFT 12-12-19 other body having authority to which Lessee is subject, or any Applicable Law. This Lease constitutes a legal, valid, and binding obligation of Lessee and its successors and assigns, enforceable against Lessee in accordance with its terms, except as may be limited by bankruptcy, reorganization, insolvency or laws relating to or affecting creditors' rights generally. No suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against Lessee that would have a material adverse effect on the validity or enforceability of this Lease or the ability of Lessee to fulfill its commitments hereunder B. Hazardous Substances. Lessee shall not use at nor transport to the Property, including the Leased Premises, any hazardous materials, including any substances defined, classified, or otherwise denominated as a "hazardous substance", "toxic substance", "hazardous material", "hazardous waste", "hazardous pollutant", "toxic pollutant" or oil by the Applicable Legal Requirements, unless authorized by the Lessor in writing. Further information regarding liability for hazardous substances is set forth in Article 14.G. C. Insolation. Lessee shall not cause or permit any material interference with Lessor's existing solar panels, if any, or Lessor's Insolation and access to sunlight, as such access exists as of the Effective Date, or build any structure or permit any third party under Lessee's control to build any structure that blocks the Lessor's existing solar panels' access to sunlight. In the event interference occurs, Lessee agrees to take all Commercially Reasonable steps necessary to eliminate such interference promptly, but no later than thirty (30) days from notification by the Lessor. D. Regulatory Status. Lessee represents and warrants that it is not an electric utility or electric corporation as defined under Massachusetts law. E. Liens. Subject to Article 13, Lessee shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, security interest, encumbrance or claim on or with respect to the Leased Premises and agrees to discharge any such encumbrance or interest that attaches to the Leased Premises. ARTICLE 13. Insurance A. Lessee (or its contractors, subcontractors or agents) and Lessor shall obtain and maintain the insurance coverage required under the PPA. Lessor shall provide Lessee with description of its insurance and self-insurance upon the execution of this Lease and the PPA. B. In the event that the PPA is terminated with respect to a System pursuant to Section 10.02(c) of the PPA as a result of a System Loss, this Lease shall terminate automatically effective upon the date of notice from Lessee to Lessor delivered pursuant to Section 10.02(c) of the PPA,provided that, Lessee shall have a reasonable period of time to remove the applicable System and System Assets from the applicable Property and shall comply with the provisions of Section 6.04 of the PPA in connection with such removal. {A0648296.1} 13 DRAFT 12-12-19 ARTICLE 14. Indemnification and Liability. A. The Lessee shall indemnify, defend, and hold harmless the Lessor and all of its officers, employees, boards, commissions, and representatives ("Lessor Indemnified Parties") from and against all claims, causes of action, suits, costs, damages, and liability of any kind ("Losses") from or to third parties which arise out of the performance of Lessee's obligations hereunder, provided that such Losses are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property but only to the extent caused by the grossly negligent or intentional acts or omissions of the Lessee, its employees, agents, subcontractors, or anyone directly or indirectly employed by them or anyone for whose acts Lessee is legally liable. This indemnity obligation shall apply notwithstanding any negligent or intentional acts, errors or omissions of the Lessor, but the Lessee's obligation to pay Losses shall be reduced in proportion to the percentage by which the Lessor's negligent or intentional acts, errors or omissions caused the Losses. B. To the extent permitted by law and not prohibited by Section 7 of Article 2 of the Constitution of the Commonwealth of Massachusetts or Massachusetts General Laws Chapter 44, Section 31, Lessor shall indemnify and hold harmless Lessee and all of its officers, employees, boards, commissions, and representatives ("Lessee Indemnified Parties") from and against any and all Losses from or to third parties for injury or death to persons or damage or loss to or of property to the extent arising out of the negligent or intentional acts or omissions of the Lessor, its employees, agents, subcontractors or representatives. This indemnity obligation shall apply notwithstanding any negligent or intentional acts, errors or omissions of Lessee, but the Lessor's obligation to pay Losses shall be reduced in proportion to the percentage by which the Lessee's negligent or intentional acts, errors or omissions caused the Losses. Notwithstanding the foregoing, the extent of the Lessor's indemnification shall not exceed the Lessor's liability for the negligent acts or omissions of its employees as governed by Massachusetts General Laws Chapter 258. C. Liability. Neither Lessor nor its officers, employees, boards, committees, commissions, agents and representatives shall be under any personal obligation or incur any personal liability by reason of this Agreement, the execution thereof or anything relating thereto which arises out of the breach or violation of any provision of this Agreement. D. Survival. The provisions of this Article shall survive the expiration or earlier termination of this Lease. E. NO CONSEQUENTIAL DAMAGES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS LEASE, NEITHER LESSEE NOR LESSOR SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS, COST OF CAPITAL OR INCREASED OPERATING COSTS, ARISING OUT OF THIS LEASE WHETHER BY REASON OF CONTRACT, INDEMNITY, STRICT LIABILITY,NEGLIGENCE OR BREACH OF WARRANTY. {A0648296.1} 14 DRAFT 12-12-19 F. Nothing contained in this Lease shall constitute a waiver by Lessor of limitations on liability of Lessor under the Massachusetts Tort Claims Act, General Laws Chapter 258, as from time to time amended. G. Liability for Hazardous Substances. I. Lessor Hazardous Substances. Lessee shall not be responsible for any liabilities, damages, costs, or expenses related to: (x) any pre-existing Hazardous Substances encountered at, released from, or transported from the Property; or(y) any Hazardous Substances brought onto the Property or released by Lessor or Lessor's agents, employees, contractors, subcontractors, licensees, or invitees (items (x) and(y) together, "Lessor Hazardous Substances"). Lessor shall indemnify and hold harmless the Lessee Indemnified Parties from any liability, damages, costs or expenses (including reasonable attorneys' fees) incurred by Lessee arising out of or related to the Lessor Hazardous Substances, except to the extent that such liability, damages, costs or expenses (including reasonable attorneys' fees) are incurred based on Lessee's negligent or intentional acts or omissions. 2. Remediation. Upon encountering any materials that Lessee suspects may constitute Hazardous Materials, Lessee shall immediately notify Lessor and may suspend work in the affected area as reasonably necessary until such materials are properly remediated. Remediation responsibilities and related costs shall proceed as follows: a. Lessor Hazardous Substances. Lessor shall remediate such Lessor Hazardous Substances at its own cost and expense. After the Commercial Operation Date, if Lessor Hazardous Substances are encountered at the Leased Premises, and Lessor is required by Applicable Law to remediate the Lessor Hazardous Substances, then Lessor shall notify Lessee in writing of the extent of Lessor's planned remediation. If any System and System Assets must be removed or Lessee's ability to operate, inspect, test, maintain, repair or replace any System and System Assets is hindered in any way by Lessor's performance of such remediation, Lessor shall be responsible for all documented Losses incurred by Lessee to remove, store and reinstall such System and System Assets or any part thereof, and lost revenue (reasonably estimated and documented by Lessee) due to any excess downtime, and if mutually acceptable to the Parties, the Term shall be extended day for day for each day of interruption due to Lessor's remediation to mitigate any such lost revenue. b. Lessee Hazardous Substances. If Lessee (A) directly causes a release of Hazardous Substances brought onto a Property by Lessee, or(B) negligently or willfully causes a release of, or exacerbates a release of, any preexisting Hazardous Substances at a Property, then Lessee, at its sole expense, shall perform all required remediation. Lessee shall indemnify and hold harmless the Lessor Indemnified Parties from any costs or {A0648296.1} 15 DRAFT 12-12-19 expenses (including but not limited to attorneys' fees, damages and liabilities) incurred by Lessor due to any such release of Hazardous Substances on the Leased Premises caused by Lessee or its subcontractors in excess of quantities allowed under Applicable Law. ARTICLE 15. Provisions Regarding Financing Parties A. The Parties acknowledge that the Lessee may finance the construction and operation of the System through non-recourse project financing, asset-backed financing, lease/purchase financing, tax equity investment or other type of financing, and in each case, ownership of the System may be transferred to a third party, and Lessee may pledge its interest in this Lease including any rights to payment, and the System as security for loans or financing. Lessor agrees to cooperate with the Lessee in the negotiation and execution of any reasonable amendment or addition to this Lease required by the financing parties so long as such amendment or addition does not result in a material adverse change in the Lessor's rights or obligations hereunder. B. The lenders will require such financing to be secured by a first lien on the Lessee's assets and the System, including a collateral or full assignment of this Lease and all of Lessee's rights and obligations hereunder. Accordingly, this Lease or Lessee's rights to receive payments hereunder, may be assigned by the Lessee in connection with the financing or any refinancing of the System, alone or aggregated with other comparable systems, without further consent of the Lessee. Lessor acknowledges that it has been advised that part of the collateral securing financial accommodations of Lessee is the granting of a first priority security interest in the System to be perfected by a filing under the Uniform Commercial Code and to be documented in a recorded notice on title to the Leased Premises. Lessor(i) agrees to execute such consent and agreement, estoppel, or similar documents with respect to a collateral assignment hereof as the lenders may reasonably request in connection with the financing or refinancing of the System and (11) acknowledges that such consent and agreement or similar documents will, among other things, require the Lessor to give the lenders notice of, and an opportunity to cure, any breach by the Lessee hereunder. C. No financing arrangement by Lessee shall materially reduce any of Lessor's rights and Lessee's obligations under this Lease. D. Notwithstanding any contrary provisions contained in this Agreement, including without limitation Article 1 o.E, Lessor specifically agrees, without any further request for prior consent but with advance written notice to Lessor which will identify any such assignee, to permit Lessee to assign, transfer or pledge its rights under this Agreement and its rights and title to the System for the purpose of obtaining financing or refinancing in connection with the System (including, without limitation, pursuant to a sale-leaseback or partnership flip transaction) and to sign any agreement reasonably requested by Lessee or its lenders to acknowledge and evidence such agreement; provided, however, that such agreement does not adversely affect the rights of Lessor or materially adversely alter the obligations owed to Lessor under the terms of this Agreement. {A0648296.1} 16 DRAFT 12-12-19 ARTICLE 16. Third Party Rights. A. Notice to Designated Third Party. Lessor agrees to give copies of any notice provided to Lessee by Lessor to any assignee or transferee permitted pursuant to Article 13 (each, a "Designated Third Party"). B. Exercise of Lessee Rights. Any Designated Third Party, as collateral assignee and if allowed pursuant to its contractual arrangements with Lessee, shall be entitled to exercise, in the place and stead of Lessee, any and all rights and remedies of Lessee under this Agreement in accordance with the terms of this Agreement. Such Designated Third Party shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement and the System, subject to the terms of this Agreement. C. Performance of Lessee Obligations. A Designated Third Party shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or obligation required of Lessee hereunder or cause to be cured any default of Lessee hereunder in the time and manner provided by and subject to the terms of this Agreement. Nothing herein requires the Designated Third Party to cure any default of Lessee under this Agreement or (unless such party has succeeded to the Lessee's interests under this Agreement) to perform any act, duty or obligation of Lessee under this Agreement, but Lessor hereby gives such party the option to do so, provided any such cure, act, duty or obligation is performed in accordance with the terms of this Agreement. D. Exercise of Remedies. Upon the exercise of remedies under its security interest in the System, including any sale thereof by a Designated Third Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Lessee to the Designated Third Party (or any assignee of the Designated Third Party) in lieu thereof, the Designated Third Party shall give notice to Lessor of the transferee or assignee of this Agreement. Any such exercise of secured party remedies shall not constitute a default under this Agreement, unless the act of exercising such remedy itself constitutes an Event of Default. E. Lessor agrees that each Designated Third Party is a third party beneficiary of the provisions of this Section only, and no other Section of this Lease. F. Upon any rejection or other termination of this Agreement pursuant to any process undertaken with respect to Lessee under the United States Bankruptcy Code, at the request of a Designated Third Party made within ninety(90) days of such termination or rejection, Lessor shall enter into a new lease agreement with such Designated Third Party or its assignee on substantially the same terms as this Agreement. G. Lessor shall not exercise any rights to terminate or suspend this Agreement unless it shall have given the Designated Third Party a copy of prior written notice of its intent to terminate or suspend this Agreement. Lessor's notice of an intent to terminate or suspend must specify the condition giving rise to such right. The Designated Third Party shall have one hundred twenty(120) days after Lessee's cure period expires to cure the condition, except that with respect to any payment defaults, the cure period for the Designated Third Party shall be {A0648296.1} 17 DRAFT 12-12-19 ninety (90) days after Lessee's cure period expires. Lessor's and Lessee's obligations under this Agreement shall otherwise remain in effect, and Lessor and Lessee shall be required to fully perform all of their respective obligations under this Agreement during any cure period. H. If pursuant to an exercise of remedies by a Designated Third Party, such party or its assignee acquires title to or control of the System and this Agreement, and cures all defaults under this Agreement existing as of the date of such change in title or control within the time periods described in the preceding paragraph (g) in the manner required by this Agreement, then such person or entity shall no longer be in default under this Agreement and this Agreement shall continue in full force and effect. ARTICLE 17. Miscellaneous. A. Amendment. No amendment to this Lease shall be valid unless made in writing and signed by a duly authorized agent of Lessee and a duly authorized agent Lessor. No provision may be waived except in a writing signed by the duly authorized signatory of the Lessor and a duly authorized signatory of the Lessee. B. Severability. If any term or condition of this Lease is found to be unenforceable under Applicable Law, the remaining terms and conditions shall remain binding upon the Parties as though said unenforceable provision were not contained herein, and if appropriate, such invalid or unenforceable provision shall be modified or replaced, pursuant to the requirements of Section 14 of this Lease, to give effect to the underlying intention of the Parties. C. Governing Law. This Lease and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the Commonwealth of Massachusetts. Each of the Parties consents to the exclusive jurisdiction of the state or federal courts of the Commonwealth of Massachusetts sitting in Middlesex County with respect to all disputes arising under or out of this Agreement, and Lessor and Lessee hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Lease brought before the foregoing courts on the basis of forum nonconveniens. D. Nondiscrimination. Lessee agrees that it shall not, because of race, color, national origin, ancestry, age, sex, religion, physical or mental handicap, or sexual orientation, gender identity, genetic information, or status as a veteran, discriminate against any qualified employee, applicant for employment, subcontractor, or person or firm seeking to provide goods or services to Lessee, or deny any person access to the Property or to any activities or programs carried out upon the Property. Lessee shall comply with all applicable federal and state statutes, rules, and regulations prohibiting discrimination in employment or public accommodation. E. No Limitation of Regulatory Authority. The Parties acknowledge that nothing in this Agreement shall be deemed to be an agreement by Lessee or Lessor to issue or cause the issuance of any permit or approval, or to limit or otherwise affect the ability of the Lessor, or the Commonwealth of Massachusetts to fulfill its regulatory mandate or execute its regulatory powers consistent with Applicable Legal Requirements. {A0648296.1} 18 DRAFT 12-12-19 F. Notices. Unless otherwise provided in this Agreement, all notices and communications concerning this Agreement shall be in writing and addressed to the other Party as follows: If to Lessee LLC c/o Ameresco, Inc. 111 Speen Street, Suite 410 Framingham, MA 01701 Attention: With a courtesy copy to: Same address as above, but with Attention: General Counsel If to Lessor: Town Manager Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 With a courtesy copy to: Kevin Batt, Esq. Jessica Wall, Esq. Anderson & Kreiger LLP 50 Milk Street Boston, MA 0210 kbattgandersonkreiger.com jwallgandersonkreiger.com or at such other address as may be designated in writing to the other Party. Unless otherwise provided herein, any notice provided for in this Agreement shall be hand-delivered, or sent by (a) registered or certified U.S. Mail, postage prepaid, (b) commercial overnight delivery service, or (c) facsimile or email attachment, and shall be deemed delivered to the addressee or its office when received at the address for notice specified above when hand-delivered, or upon confirmation of sending when sent by facsimile or email(if sent during normal business hours or the next Business Day if sent at any other time),on the Business Day after being sent when sent by overnight delivery service (Saturdays, Sundays and legal holidays excluded), or five (5) Business Days after deposit in the mail when sent by U.S. Mail. Lessor shall deliver to any Lender, concurrently with delivery thereof to Lessee, a copy of each notice of Lessee Default given by Lessor under Section 8.01 of {A0648296.1} 19 DRAFT 12-12-19 this Agreement, and no such notice shall be effective absent delivery to the Lender, provided that Lessor shall not be required to deliver such a notice to more than one Lender or to more than one address at any given time, and provided further that such Lender is identified in this Agreement or in a writing signed by Lessee and delivered to Lessor in accordance with this Section 14.17. In the event more than one Lender or more than one address is identified by Lessee, Lessor shall be in compliance with the preceding sentence of this Section if it delivers a copy of the notice of Lessee Default to any one such Lender and at any one such address,unless the notice to Lessor identifying a Lender and address expressly states that such Lender and such address supersedes any prior Lender and address identified by Lessee, in which event Lessor shall deliver said notice to such Lender at such address. G. Notice of Lease. Lessor agrees to execute a Notice of Lease pursuant to G.L. c. 183, §4, to be prepared by Lessee in the form of Exhibit B hereto, which Notice may be recorded by Lessee at its expense. If requested, a copy shall be sent to the Lessor. H. Entire Agreement. This Lease, the PPA, and the PILOT Agreement contain all the agreements, promises and understandings between the Lessor and Lessee and no oral agreements, promises or understandings shall be binding upon either the Lessor or Lessee in any disputes, controversy or proceeding at law, and any addition, variation or modification to this Lease shall be void and ineffective unless made in writing and signed by the Parties hereto in accordance with Section 14 of this Lease. I. No Third Party Beneficiaries. This Lease is solely for the benefit of the Parties and no right or cause of action shall accrue by reason hereof for the benefit of any third party not a Party hereto, other than the Lessor Indemnified Parties, the Lessee Indemnified Parties and any lenders or secured parties, as provided herein; provided that any Designated Third Party (as defined below) shall be an intended third party beneficiary of this Lease. J. Waiver. The waiver by either Party of any breach of any term, condition or provision herein contained shall not be deemed to be a waiver of such term, condition or provision, or of any subsequent breach of the same, or any other term, condition or provision contained herein. K. Remedies Cumulative. No remedy herein conferred upon or reserved to Lessee or Lessor shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now r hereafter existing at law or in equity or by statute. L. Binding Effect. This Lease and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the Parties hereto, together with their respective successors and permitted assigns. M. Counterparts. This Lease may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or"pdf' signatures shall have the same effect as original signatures and each Party consents to the admission in evidence of a facsimile or photocopy of this Lease in any court or other proceeding between the Parties. {A0648296.1} 20 DRAFT 12-12-19 N. Further Assurances. Upon receipt of a written request from the other Party, each Party shall execute such additional documents, instruments or assurances and take such additional actions (including the prompt and proper recording of this Lease) as are reasonably necessary to carry out the terms and intent hereof. Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this section. O. Dispute Resolution. The Parties acknowledge and agree that Article IX of the PPA is incorporated herein by reference as if set forth fully in this Lease and governs the rights and duties with regard to this Lease as it does the PPA. P. Certificates. Either Party hereto, without charge, at any time and from time to time, within fifteen (15) business days after receipt of a written request by the other Party hereto, shall deliver a written instrument, duly executed, certifying to such requesting Party, or any other person, firm or corporation specified by such requesting Party: 1. That this Lease is unmodified and in full force and effect, or if there has been any modification, that the same is in full force and effect as so modified, and identifying any such modification; 2. Such other information as may be reasonably requested by the other Party; and 3. Any written instrument given hereunder may be relied upon by the recipient of such instrument, except to the extent that the recipient has actual knowledge of facts or information contained in the written instrument. [Signatures Follow] {A0648296.1} 21 DRAFT 12-12-19 IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respected seals as of the date first written above. LESSOR: James Malloy Lexington Town Manager Approved as to Form: Name: Title: Date: LESSEE: LLC By: Name & Title {A0648296.1} 22 DRAFT 12-12-19 Exhibit A General Depiction of Leased Premises {A0648296.1 23 DRAFT 12-12-19 Exhibit A-1 LESSOR'S RESERVED USES FOR THE PROPERTY The Permitted Use described herein, and all of Lessee's use of the Property and the Leased Premises, are subject to the Town of Lexington's customary uses of the Property for: (1) school purposes, including educational programming, sports events, and parking; and (2) all necessary or appropriate operations and maintenance of existing infrastructure and facilities on the Property. {A0648296.1} 24 DRAFT 12-12-19 Exhibit B RECORDING REQUESTED BY, PREPARED BY AND WHEN RECORDED RETURN TO: (Space above this line for recorder's use only) NOTICE OF LEASE This Notice of Lease is made this day of , 20195 by and between Town of Lexington, Massachusetts ("Lessor") and LLC, a Delaware limited liability company ("Lessee" and together with Lessor, the "Parties"). In accordance with the provisions of Massachusetts General Laws Chapter 183, Section 4, as amended, notice is hereby given of the following described lease: Date of Lease: Lessor: Lessee: Leased Premises: Certain space on the rooftop and other portions of the Property listed on Annex 1. A depiction of the Leased Premises is attached hereto as Annex 2. Initial Term: From the date of the Lease (shown above) until 00:00 a.m. on the last day of the month in which the twentieth anniversary of the Commercial Operation Date (as defined in the Power Purchase Agreement dated as of even date with the Lease between Lessor and Lessee(the"PPA"))for the last System to achieve Commercial Operation (as defined in the PPA) occurs. Leasehold Access Rights: The Leased Premises are leased to Lessee together with the following rights: a. Lessor hereby grants to Lessee the non-exclusive use of such additional space at each Property for the installation, operation and maintenance of utility lines, cables, conduits, transformers, wires, meters, monitoring equipment and {A0648296.1} 25 DRAFT 12-12-19 other necessary equipment and appurtenances ("Cabling Space,") wherever located, whether between and among the floors of the buildings located on the Property, the rooftop space, the Delivery Point, and all necessary electrical and other utility sources located within each building or on the Property. The location of the Cabling Space shall be mutually agreed upon by the Parties. b. Lessor hereby grants to Lessee non-exclusive rights of ingress and egress from all public right-of-ways over each Property to and from the respective Leased Premises and Cabling Space during normal business hours, and upon reasonable advance coordination with Lessor outside of normal business hours. Ownership of the System: Lessee or Lessee's assigns, will at all times retain title to and be the legal and beneficial owner of the System, which will at all times retain the legal status of personal property of Lessee as defined under Article 9 of the Uniform Commercial Code. The System will not attach to or be deemed a part of, or a fixture to, the Leased Premises, notwithstanding the manner in which the System are or may be affixed to the real property of Lessor. The term "System" or "System" means the solar electric generating System or facilities installed at Lessor's property, including but not limited to the System Assets. "System Assets"means each and all of the assets of which each applicable System is comprised, including Lessee's solar energy panels, mounting systems, carports, tracking devices,inverters,integrators and other related equipment and components installed on Lessor's premises, electric lines and conduits required to connect such equipment to the Delivery Point and the LDC System(as such terms are defined in the Lease), protective and associated equipment, improvements, metering devices, and other tangible and intangible assets,permits,property rights and contract rights reasonably necessary for the construction, operation, and maintenance of the applicable System. [Signatures begin on following page] {A0648296.1} 26 DRAFT 12-12-19 Executed and effective as of the date first set forth above. LESSOR: By: Name: Title: COMMONWEALTH OF MASSACHUSETTS ss. On this day of ,before me, the undersigned notary public,personally appeared ,proved to me through satisfactory evidence of identification,which was a Massachusetts driver's license,to be the person whose name is signed on the preceding document, and acknowledged to me that he signed it voluntarily for its stated purpose, as of City of . Notary Public My commission expires: LESSEE: BY: By: Name: Title: COMMONWEALTH OF MASSACHUSETTS ss. On this day of ,before me, the undersigned notary public,personally appeared ,proved to me through satisfactory evidence of identification,which was a Massachusetts driver's license,to be the person whose name is signed on the preceding document, and acknowledged to me that he signed it voluntarily for its stated purpose, as of Notary Public My commission expires: {A0648296.1} 27 DRAFT 12-12-19 Annex 1 to Notice of Lease DESCRIPTION OF LESSOR'S PROPERTY {A0648296.1} 28 DRAFT 12-12-19 Annex 2 to Notice of Lease DEPICTION OF LEASED PREMISES {A0648296.1} 29 ANDERSON I E MEMORANDUM To: Town of Lexington Board of Selectmen and Town Manager James Malloy From: Kevin Batt and Jessica A. Wall ANDERSON &KREIGER LLP Re: Status of Negotiations with Ameresco regarding School Solar Projects Date: December 13, 2019 The Town and Ameresco are negotiating contracts for seven solar projects at Lexington Children's Place; New Hastings Elementary; Diamond Middle School; Bridge Elementary School; Harrington Elementary; Clarke Middle School; and Bowman Elementary. Together with Town staff, Select Board member Mark Sandeen and Sustainable Lexington Committee member Dan Voss, Town Counsel at Anderson& Kreiger(A&K) have been negotiating these contracts for several months. A&K and Town staff last appeared before the Board on November 18 to describe the projects. This memorandum summarizes the key legal terms of the solar contracts and provides an update regarding negotiations with Ameresco. If the Board is comfortable with the terms below, the Board may vote to a) approve the contracts in principle and b) authorize the Town Manager to coordinate with Town staff, A&K and the School Committee to negotiate final terms and execute the contracts. Each solar site will include a solar array and battery energy storage system. The agreements between the Town and Ameresco will be set forth in three contract documents: (1) a Power Purchase Agreement (PPA), which governs the production and sale of electricity from Ameresco to the Town, as well as battery storage; (2) a Lease for Ameresco's occupation and use of Town property, and(3) a PILOT (payment in lieu of taxes) Agreement to set tax payments on the systems. Since our last update, the Town and Ameresco have agreed that each site also will have an Operations and Maintenance (O&M) agreement. The Town and Ameresco would like to finalize contract documents promptly in order to obtain the best pricing arrangements through the Commonwealth's SMART solar program, which assigns pricing in blocks. The current versions of the PPA, Lease, and a sample PILOT Agreement, which have not yet been finalized, are included in the Board's package. Please note that these are not final versions and certain provisions may change. The important terms of each document are discussed briefly below. 1) Power Purchase Agreement. The PPA is the primary contract document. Under the PPA, Ameresco will own the solar facilities and sell to the Town the electricity that is generated by the solar system for consumption on site, in addition to net metering credits. Battery storage allows the Town to minimize its need to purchase electricity by instead using stored power. Ameresco guarantees a set amount of electricity output at each facility per year, as well as certain performance standards for the battery (Section 2.02). If the solar or battery systems are not functioning properly, the PPA establishes a formula for compensation for the Town to recover(Section 2.02, 4.01). The Town has an option to purchase the systems at 10 years and 15 years after operation begins, and tA0648292.1} STREET, 21st FLOOR, BOSTON, 1 17.621.6500 Town of Lexington Board of Selectmen and Town Manager December 13, 2019 Page 2 again at the end of the Term(Article 13). A Decommissioning Assurance guarantees that Ameresco has funds to remove the systems when appropriate (Section 6.05). The PPA exhibits are under review. The greatest number of open issues involve battery storage. Savings from battery storage are particularly important for the Town, and battery operation issues are complex to resolve. The Town is working with Ameresco to craft a mutually agreeable scenario in which, if batteries are not available by the start of construction, the Town and Ameresco can mutually agree how to proceed. The O&M Agreement may establish operations parameters that minimize financial risks to the Town if battery systems are not operating properly. The Town and Ameresco have had productive discussions since the last Board meeting and should be able to reach a mutually acceptable agreement regarding the PPA. 2) Lease. The Town and Ameresco are close to fully resolving lease terms. The Lease term is 20 years. The Lease protects the Town from property damage during construction and installation (Article 4) and sets forth Ameresco's maintenance obligations. Access to the properties will be coordinated to minimize disruption to schools according to a set construction schedule, and to protect students and teachers, workers are subject to background checks (Article 7). The Town may relocate the solar facilities if necessary (Article 8), and Ameresco may not bring any hazardous materials to the properties unless authorized by the Town in writing (Article 12). At the end of the Lease term, if the Town has not exercised its purchase option, then Ameresco will remove the solar and storage system within 4 months (Article 9). We do not foresee significant issues in finalizing the Lease. 3) PILOT Agreement. The Board packet includes a sample PILOT Agreement used in the Town's last contracts with Ameresco in 2014. The PILOTs for these seven projects will follow the same template. The proposed PILOT tax rate is $30,000/MWdc (megawatt of direct current). Town finance staff is confirming the PILOT valuation, which will then be included in the Agreements. We do not expect that the details of the PILOT will be a barrier to finalizing contracts. 4) O&M Agreement. The O&M Agreement has not yet been drafted, but the Department of Public Facilities is working with Ameresco to develop a comprehensive and detailed plan to ensure that solar facilities and battery facilities operate smoothly and any problems are promptly repaired. To finalize the contracts, the School Committee must provide input on each of the projects to ensure that construction and operation will minimally interfere with school operation. Bond counsel will also need to review financial terms. Conservation Commission approvals are required for certain projects, but these issues may be resolved after contracts are finalized. Based on our discussions to date with Ameresco, the open items in the four documents appear capable of resolution. If the Board is comfortable with the terms we have described, then it may vote to a) approve the contracts in principle and b) authorize the Town Manager to coordinate with Town staff, A&K and the School Committee to negotiate final terms and execute the contracts. We are happy to discuss the projects and contracts in more detail at the Board's December 16 meeting. {A0648292.1 1 DRAFT SOLAR POWER AND STORAGE SERVICES AGREEMENT between LLC ("Provider") and ("Customer") 2019 (the "Effective Date") {A0648300.1} SOLAR POWER AND STORAGE SERVICES AGREEMENT THIS SOLAR POWER AND STORAGE SERVICES AGREEMENT (this (."Agreement") is made effective as of (the "Effective Date"), between LLC ("Provider"), and a municipal corporation and political subdivision of the Commonwealth of Massachusetts ("Customer"). Provider and Customer are sometimes referred to individually as a Party and collectively as the Parties. BACKGROUND WHEREAS, Provider has offered to sell Solar Services (as hereafter defined)produced by the solar photovoltaic system and Storage Services (as hereafter defined) to Customer as provided in and subject to the provisions of this Agreement, and Customer is willing to purchase the Solar Services and Storage Services as provided in and subject to the provisions of this Agreement; and WHEREAS, in order to enable this Agreement, Provider and Customer are entering into that certain Lease Agreement of the Leased Premises located in , Massachusetts (see Schedule I attached hereto) between Provider and Customer bearing the same date as this Agreement, which will host the above solar photovoltaic system for the production and storage of electricity and corresponding Net Metering Credits, and Provider will, at its sole cost, install, maintain, own and operate that system at the Leased Premises; and NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE I. DEFINITIONS 1.01 Definitions. In addition to other terms specifically defined elsewhere in this Agreement, where capitalized, the following words and phrases shall be defined as follows: "Affiliate" means, with respect to any Person, any other Person directly or indirectly, through one or more intermediaries,controls, or is controlled by, or is under common control with, such Person. ".'Agreement"means this Solar Power Services Agreement, including the Schedules and Exhibits attached hereto. "Annual Facilities Degradation Factor"means the factor expressed in percent by which the Guaranteed Annual Electric Output of the Facilities shall decrease each Contract Year as set forth in Schedule 5. "Applicable Law" means any and all applicable constitutional provisions, laws, statutes, rules, regulations, ordinances, bylaws, tariffs, treaties, orders, decrees, judgments, decisions, certificates, holdings, injunctions, registrations, licenses, franchises, permits, authorizations, guidelines, Governmental Approvals, the Net Metering Rules, SMART Program regulations, the JA0648300.1 1 2 Massachusetts Clean Peak Energy Standard, and any and all approvals, consents or requirements of any Governmental Authority having jurisdiction, enforceable at law or in equity, including the interpretation and administration thereof by such Governmental Authority. "Assignment"has the meaning set forth in Article XI. "Availability Guarantee" means the guarantee with respect to availability of the Storage System as provided by the Battery Manufacturer which shall be set forth on Schedule 9 which may be updated before the Commercial Operation Date to account for any change in Battery Manufacturer. "Bankrupt" means that a Party (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (ii) becomes insolvent; (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (iv) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditor's rights, or a petition is presented for its winding-up,reorganization or liquidation,which proceeding or petition is not dismissed, stayed or vacated within twenty (20) Business Days thereafter; (v) commences a voluntary proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights; (vi) seeks or consents to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all of its assets; (vii) has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets; (viii) causes or is subject to any event which, under the applicable laws of any jurisdiction,has an analogous effect to any of the events specified in clauses (i)to(vii) inclusive; or(ix)takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. "Battery Life" shall mean term of warranty that the Battery Manufacturer has provided for the Storage Systems' battery. "Battery Manufacturer" means the equipment manufacturer and supplier of the battery as set forth on Schedule 2 which may be updated before the Commercial Operation Date in the event Provider selects a different supplier to provider the battery, as approved by Customer. "BTM System" means a Solar System that serves on-site load, and is further defined as a Behind The Meter Solar Tariff Generation Unit in the SMART Program Regulations, and includes the Storage System. "Business means Monday through Friday,exclusive of state and federal legal holiday in the Commonwealth of Massachusetts. "Cap Allocation"has the meaning set forth in the Net Metering Rules. "Commercial Operation"means: (1) with respect to a Solar System, that the Solar System is ready for regular, daily operation,has been interconnected to the Local Electric Utility,has been accepted by the Local Electric Utility (to the extent required), and is capable of producing JA0648300.1 1 3 Electricity at full or substantially full capacity, has been installed in accordance with Applicable Law, and qualifies as an net metering unit; and (2) with respect to a Storage System, that the Storage System has the ability to store and discharge electricity on demand, and the software running the Storage System is capable of operating the Storage System in accordance with the Commonwealth's demand reduction programs, the peak reduction targets for the Premises, and the Town's capacity tag reduction targets. "Commercial Operation Date" means the first day on which the Solar System and the Storage System achieves Commercial Operation, as defined herein, is ready for Commercial Operation, as certified in writing by Provider to Customer in a notice of Commercial Operation. Commercially Reasonable" means any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known, or which in the exercise of due diligence, should have been known,at the time the decision was made,would have been expected in the industry to accomplish the desired result consistent with reliability, safety, expedition, project economics, and regulations. "'Construction Commencement Date" is the date on which all Governmental Approvals for construction shall have been obtained by Provider, and construction activities for the installation of the System shall have commenced. "Contract Year" means a 365-day period commencing on the Commercial Operation Date, and each subsequent 365-day period thereafter. "CORI" means Criminal Offender Record Information and has the meaning set forth in Section 4.9. "Credit Value" shall mean the applicable monetary value of an excess kilowatt-hour of electricity, determined in accordance with the Net Metering Rules or SMART Tariff, as applicable. "Customer"has the meaning set forth in the preamble hereof. "Customer Default" has the meaning set forth in Section 8.02(a). "Customer Termination Payment" means the fee payable by Customer to Provider under the circumstances described in Section 8.03. "Delivery Point" means, with respect to a Solar System, the point at which a Solar System interconnects to the Customer's intertie with the LDC on the Customer's side of the LDC Metering Device. "Dispute"has the meaning set forth in Section 9.01. "Effective Date"has the meaning set forth in the preamble hereof. "Environmental Attributes" means the characteristics of electric power generation by the Solar System that have intrinsic value separate and apart from the energy and arising from the JA0648300.1 1 4 perceived environmental benefit of the Solar System or the energy produced by the Solar System including but not limited to all environmental attributes or renewable energy credits, including carbon trading credits, or certificates, emissions reduction credits, emissions allowances, green tags and tradable renewable credits, environmental and other attributes that differentiate the Solar System or energy produced by the Solar System from energy generated by fossil fuel based generation units, fuels or resources, characteristics of the Solar System that may result in the avoidance of environmental impacts on air, soil or water, such as the absence of emission of any oxides of nitrogen, sulfur or carbon or mercury, or other base or chemical, soot particulate matter or other substances attributable to the Solar System or the compliance of the Solar System or energy with the law, rules and standards of the United Nations Framework convention on Climate Changes or the Kyoto Protocol or the UNFCCC or crediting "early action" with a view thereto, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Agency or successor administrator of any state or federal entity given jurisdiction over a program involving transferability of rights arising from Environmental Attributes and Reporting Rights. Environmental Attributes does not include Environmental Incentives or Net Metering Credits or Storage Attributes. "Environmental Incentives" means any credit, benefit, reduction, offset, financial incentive, tax credit and other beneficial allowance that is in effect as of the Effective Date or may come into effect in the future, including, to the extent applicable and without limitation, (i) greenhouse gas offsets under the Regional Greenhouse Gas Initiative, (ii) tax credits, incentives or depreciation allowances established under any federal or state law, (iii) fuel-related subsidies or"tipping fees"that may be paid to accept certain fuels, (iv) incentives (other than Net Metering Credits and Alternative On-bill Credits) under the Solar Massachusetts Renewable Target(SMART) Program and(v) other financial incentives in the form of credits, tax write-offs, reductions or allowances under Applicable Law attributable to the Solar System, the Storage System or Electricity, and all Reporting Rights with respect to such incentives; provided that Environmental Incentives shall not include Storage Attributes. "'Fair Market Value"means the fair market value of the Solar System and Storage System determined by an Independent Appraiser. Fair Market Value means the price that would be established in an arm's-length transaction between an informed and willing customer and an informed and willing seller, neither being under any compulsion to act. "Financing Date"has the meaning set forth in Section 6.03(b). "Force Majeure Event"has the meaning set forth in Section 8.04. "Governmental Approval" means any approval, consent, franchise, permit, certificate, resolution, concession, license or authorization issued by or on behalf of, or required to be issued by or on behalf of, any applicable Governmental Authority or Local Electric Utility. "Governmental Authority" means the United States of America, the Commonwealth of Massachusetts, and any political or municipal subdivision thereof (including but not limited to Customer acting in its regulatory capacity, but not as Party to this Contract), and any agency, department, commission, board, bureau, or instrumentality of any of them, and any independent electric system operator. JA0648300.1 1 5 "Governmental Charges" means all applicable federal, state and local taxes (including, without limitation, real and personal property taxes, sales, use, gross receipts or similar taxes), governmental charges, costs, expenses, charges, emission allowance costs, duties, tariffs, levies, licenses, fees, permits, assessments, adders or surcharges (including public purposes charges and low income bill payment assistance charges), imposed, assessed, and/or authorized by a Governmental Authority,the Local Electric Utility or other similar entity, on or with respect to the System, Property, Solar Services, Storage Services, this Agreement and/or the Lease. "Guaranteed Annual Solar Services Output"means the minimum amount of electricity that is guaranteed by the Provider to be generated by the System in a Contract Year as shown in Schedule4. "Guaranteed Storage Capacity means, for the Storage System, the Storage System's capacity that is guaranteed by the Provider during the Battery Life, as shown in Schedule 7,which shall be updated in the event of a change in Battery Manufacturer. "Hazardous Substances"means those substances defined, classified, or otherwise denominated as a"hazardous substance", "toxic substance", "hazardous material", "hazardous waste", "hazardous pollutant", "toxic pollutant" or oil in the Applicable Law or in any regulations promulgated pursuant to the Applicable Law. "Host Customer" shall have the meaning given this term in the Net Metering Rules. "Independent Appraiser"means an individual qualified by education, certification, experience and training to determine the value of solar facilities of the size and age and with the operational characteristics of the Solar System and Storage System. Except as may be otherwise agreed by the Parties, the Independent Appraiser shall not be (or within three (3) years before his appointment have been) a director, officer or employee of, or directly or indirectly retained as consultant or adviser to, Provider, any Affiliate of Provider, or Customer. "LDC" means the local electricity distribution company. LDC Metering Device"means one or more meters furnished and installed by the LDC for the purpose of measuring the Electricity delivered by the LDC to the Host Customer and delivered by the Host Customer to the LDC. "LDC Retail Rate"means the rate (expressed on a $/kWh basis) charged by the LDC in any Contract Year for electricity that is delivered to Customer, and shall include, without limitation all electric commodity charges, transmission, distribution or other delivery charges, increases to charges based on demand, ancillary service charges, transition, renewable energy, efficiency, or competitive service charges, taxes, and other fees and charges in place. "LDC System"means the electric distribution system operated and maintained by the LDC. "Lease" means that certain Lease Agreement, to be entered into concurrently with this Agreement, between the Customer and Provider. "Leased Premises"has the meaning set forth in the Lease. JA0648300.1 1 6 "Lender" means any third-party entity providing financing to Provider with respect to the System. It shall not mean Provider's trade creditors. "Local Electric Utility" or"LDC"means the local electric distribution company providing interconnection and net metering services for the System. "'Meter" means with respect to the Solar System, the revenue quality meter(s) installed by Provider and used for the registration, recording, and transmission of information regarding the amount of Solar Services generated by the Solar System. "Net Metered Generation Unit"has the meaning set forth in 225 CMR 20.02. "Net Meterin Y" means the process of measuring the difference between electricity delivered by a local electric distribution company and electricity generated by a net metering facility and fed back to the local electric distribution company, as set forth under M.G.L. c. 164, §§ 138 — 140 and 220 C.M.R. 18.00, as may be amended from time to time by a Governmental Authority, and pursuant to the LDC tariffs. "Net Metering Credit"has the meaning set forth in 220 C.M.R. 18.00, as may be amended from time to time by a Governmental Authority, as implemented by the LDC tariffs. "Outside Commercial Operation Date" means the later of days from the Construction Commencement Date or days after the Provider's application has been accepted by the SMART Program, subject to the provisions of 4.01(c). "Outside Construction Commencement Date"means no later than June 30, 2020. "Party"means Provider or Customer. "Person"means an individual,partnership,corporation,limited liability company,business trust,joint stock company, trust, unincorporated association,joint venture, firm or other entity, or a Governmental Authority. "'Production Shortfall"means the amount, expressed in kWh, by which the actual amount of Solar Services generated by the System in any Contract Year is less that the Guaranteed Annual Solar Services Output for such Contract Year, as set forth in Section 2.02. "Property" has the meaning set forth in the Lease, and includes the Leased Premises. "Provider" has the meaning set forth in the preamble hereof. "Provider Default"has the meaning set forth in Section8 .01(a). "Provider Termination Payment"means the payment made by the Provider to the Customer in accordance with Section 8.03 and shown on Schedule 6. "Public Entity Solar Tariff Generation Unit" has the meaning set forth in the SMART Program regulations at 225 CMR 20.02. JA0648300.1 1 7 "Purchase Option"has the meaning set forth in Article XIII of this Agreement. "Rebates" shall mean any and all Governmental Authority or utility rebates or other funding offered for the development of photovoltaic systems but does not include grants or benefits for which only a governmental entity is eligible as determined by and under Applicable Law. ".Shortfall Pam" shall have the meaning set forth in Section 2.02(b). ".Site Plan" means a plan depicting the locations, within and upon the Property, of Solar System and Storage System components, including interconnection arrangements and access points, as revised by final as-built drawing(s)and subsequent revisions depicting any Solar System and Storage System alterations, and incorporated in Schedule 2 hereto. "SMART Program" means the Solar Massachusetts Renewable Target (SMART) Program established pursuant to 225 CMR 20.00. "SMART Tariff' means the tariff implementing the incentive program under the SMART Program filed by the LDC and approved by the Massachusetts Department of Public Utilities. "Solar Services" means the electricity generated by the Solar System and delivered from the System to Customer at the applicable Delivery Point, as metered in whole kilowatt-hours (kWh) at the applicable Meter. "Solar Services Rate" means the price per kWh of Solar Services delivered to the Delivery Point, as set forth in Schedule 3, and shall include the price of Storage Services. "Services Payment"has the meaning set forth in Section 3.01. "SORI" means Sex Offender Record Information and has the meaning set forth in Section 4.9. "Specified Rate" shall mean the specified cost of electric energy for calculating the Shortfall Payment or the Storage Shortfall Payment and such cost is set forth in Schedule 4 attached hereto. "Stand-Alone System" means a System that is not serving on site load behind the retail service meter and is further defined as a Standalone Solar Tariff Generation Unit in the SMART Regulations. "Stated Rate"means a fluctuating interest rate per annum equal to the sum of the lesser of (i) the Prime Rate as stated in the "Bonds, Rates & Yields" section of The Wall Street Journal on the Effective Date and thereafter on the first day of every calendar month,plus two (2)percentage points, or (ii) ten percent (10%). In the event that such rate is no longer published in The Wall Street Journal or such publication is no longer published, the Interest Rate shall be set using a comparable index or interest rate selected by Customer and reasonably acceptable to Provider. The Interest Rate hereunder shall change on the first day of every calendar month. Interest shall be calculated daily on the basis of a year of three hundred and sixty-five (365) days and the actual number of days for which such interest is due. JA0648300.1 1 8 "Solar System" means each solar electric generating facility consisting of the Systems Assets of each facility that produces the Solar Services sold and purchased under this Agreement, all as further set forth in Schedule 2 attached hereto. ".Solar System Assets" means each and all of the assets of which the System is comprised, including solar energy panels, mounting systems, tracking devices, inverters, integrators, electric lines and conduits required to connect such equipment to the applicable Delivery Point, protective and associated equipment, improvements, Meters, and other tangible and intangible assets, permits, leasehold rights and contract rights reasonably necessary for the construction, operation, and maintenance of the System. "Storage Attributes"means any credit, benefit, reduction, offset, financial incentive and other beneficial allowance that is in effect as of the Effective Date or may come into effect in the future under Commonwealth of Massachusetts and LDC programs attributable to the operation of the Storage System, including, to the extent applicable and without limitation, demand side reduction and benefits available under the Massachusetts Clean Peak Standard, but specifically excluding any tax credits, incentives or depreciation allowances established under any federal or state law and excluding any adders or incentives related to the Storage System under the Solar Massachusetts Renewable Target Program, "Storage Services" means the Storage System's function of storaging and discharging electricity to and from the Solar System at the Premises, and includes the storage and dischargeg of electricity on demand and the operation of software to optimize storage and discharge consistent with peak reduction targets and capacity tag reduction targets. "Storage Shortfall Payment" has the meaning set forth in Section 2.02(c). "Storage System" means each solar electric storage facility consisting of the Storage System Assets that stores and discharges electricity, connected to the Solar System, all as further set forth in Schedule 2 attached hereto. ".'Storage System Assets" means each and all of the assets of which the Storage System is comprised,includima, battery energy storage and other related equipment and components installed on the Leased Premises, protective and associated equipment, improvements, meters, and other tangible and intangible assets, permits, leasehold rights and contract rights reasonably necessary for the construction, operation, and maintenance of the Storage System. "System Loss"means loss, damage or destruction of a Solar System or Solar System Assets, or Storage System or Storage System Assets, that prevents or limits a Solar System or Storage System from operating in whole or in part, resulting from or arising out of casualty, condemnation or Force Majeure. Loss, damage or destruction of a building or other structure in which or upon which a Solar System or Storage System is installed, which prevents or materially impairs Provider's access to and/or use of such Solar System or Storage System for the uses intended hereunder, shall be deemed a System Loss for the purposes of this Agreement. "Term"has the meaning set forth in Section 6.01. JA0648300.1 1 "Termination Payment" means an amount payable by Customer to Provider (the Customer Termination Payment) or Provider to Customer(the Provider Termination Payment) in the event of termination of this Agreement as a result of an Event of Default, as set forth in Schedule 5 and 6 attached hereto. "Test Enemy"means Solar Services generated by a Solar Systemand delivered to the Delivery Point prior to the Commercial Operation Date. 1.02 Separate Agreements. The rights and obligations of the Parties with respect to a System on a particular Property are separate and independent from the rights and obligations of the Parties with respect to any other System on other property of the Customer. ARTICLE 11. DELIVERY OF SOLAR SERVICES AND STORAGE SERVICES; GUARANTEES 2.01 Purchase Requirement. (a) This Agreement provides the terms and conditions upon which the Provider agrees to design, construct, maintain and operate the Solar System and Storage System (collectively,the"Systems")located on the Property that is owned by Customer. Customer agrees to purchase (i) one hundred percent (100%) of the Solar Services produced by the Solar System and metered by a Meter during the Term and (ii) all the Net Metering Credits transferred to the Customer as a result of the electricity produced by the Solar System and delivered by Provider to the LDC. Each System is further described in Schedule 2 hereto. (b) Commencing on the Commercial Operation Date and continuing throughout the remainder of the Term, Provider shall sell and make available to Customer, and Customer shall purchase and take delivery of at the Delivery Point, all of the Solar Services generated by the Solar System at the applicable Solar Services Rate as specified in Schedule 3. Prior to the Commercial Operation Date,Provider shall make available to Customer and Customer shall take delivery of at the Delivery Point, any Test Energy produced by any Solar System and Storage System as measured by the Meters installed with each System. Customer shall pay for the Test Energy at a rate equal to Solar Services Rate applicable on the Commercial Operation Date. (c) The purchase of Solar Services and the Storage Services hereunder does not include Environmental Attributes; Environmental Incentives; or(except for Net Metering Credits and Storage Attributes) any other attributes of ownership of the System, title to which shall rest solely with Provider (except with respect to Environmental Attributes to the extent required to be transferred to the LDC under the SMART Program which shall transfer to the LDC at the Delivery Point). Notwithstanding the foregoing, the Parties agree and acknowledge that Customer shall be entitled to all Net Metering Credits and Storage Attributes related to the Solar Services purchased hereunder. Customer shall not report to any Person that any Environmental Attributes and Environmental Incentives relating to the Solar Services belong to any Person other than Provider. Customer shall be entitled to all right, title and interest in and to the Storage Attributes. At Provider's request, Customer shall execute all such documents and instruments reasonably necessary or desirable to effect or evidence Provider's right, title and interest in and to the JA0648300.1 1 10 Environmental Attributes and Environmental Incentives relating to the Solar Services and Storage Services (other than the Storage Attributes or the Net Metering Credits). (d) Title to and risk of loss of the Solar Services will pass from Provider to Customer at the Delivery Point. Provider warrants that it will deliver the Solar Services to Customer at the Delivery Point free and clear of all liens, security interests, claims, and other encumbrances. 2.02 Guaranteed Annual Solar Services Output and Guaranteed Storage Capacity. (a) Provider guarantees that the System will produce the Guaranteed Annual Solar Services Output in each Contract Year,as adjusted by the Annual System Degradation Factor shown in Schedule 4. On the first anniversary of the Commercial Operation Date and each anniversary of the Commercial Operation Date thereafter during the Term (and any extension thereof), the Guaranteed Annual Solar Services Output shall be decreased by the Annual System Degradation Factor. (b) Subject to clause (c) below, in the event that a Production Shortfall exists in any Contract Year, Provider shall be required to pay Buyer a payment ("Shortfall Payment") equal to the product of: (A) the amount, if any, in dollars per kWh by which (1) the LDC Retail Rate for BTM Systems exceeds (2) the Solar Services Ratefor such Contract Year, multiplied by (B) the Production Shortfall for such Contract Year; provided, that the amount under subclause (A) shall in no case exceed $0.03 per kWh. For purposes of calculating a Shortfall Payment under this clause(b),the Production Shortfall shall be adjusted as reasonably determined by Provider and approved by Customer, such approval not to be unreasonably withheld, due to failure, damage or downtime attributable to Customer or third parties, general utility outages or any failure of any electric grid, Force Majeure, or breaches or omissions of Customer of any of its obligations hereunder. Credit of the Shortfall Payment, as described herein, shall be Customer's sole remedy against Provider for failure to meet the Guaranteed Annual Solar Services Output. Provider shall credit Customer on its next invoice(s) the Shortfall Payment. (c) Provider guarantees that for the Battery Life the Storage System will meet the Guaranteed Capacity as set forth on Schedule 7. Customer acknowledges and agrees that Provider shall not have any obligation to replace the Storage System or provide Storage Services after the expiration of the Battery Life. If the Storage System malfunctions during the Battery Life,the Provider must repair or replace equipment to restore it to full working order in accordance with the terms of this Agreement in accordance with Section 4.04. Unless agreed to pursuant to an amendment to this Agreement, Provider does not provide any guaranty as to the capacity or operation of the Storage System after the Battery Life. If the Storage System fails to meet the Guaranteed Capacity in any Contract Year,Provider shall be required to pay Customer a payment ("Storage Shortfall Payment") as set forth on Schedule 7;provided that Provider shall only be obligated to make such Storage Shortfall Payment to the extent Provider is able to recover such amount from the Battery Manufacturer pursuant to such Battery Manufacturer's capacity guarantee as set forth on Schedule 7. JA0648300.1 I 11 (d) Availability Guarantee. Customer shall have the option to elect to obtain the Availabilty Guarantee from the Battery Manufacturer subject to an agreement by Customer to either reimburse Provider for the additional costs associated with such Availability Guarantee or to increase the Solar Services Rate to account for such additional costs. In the event Customer elects to obtain the Availability Guarantee,Provider shall obtain such Availability Guarantee from the Battery Manufacturere and use Commercially Reasonable efforts to enforce such Availability Guarantee and shall pay to Customer any payments received by Provider under such Availability Guarantee from the Battery Manufacturer. (e) Solar System Disruptions (i) The Parties agree that at any time during the Term of the Agreement, Customer shall be afforded a period of up to eight (8) days per calendar year (which shall be prorated for the first calendar year based on the number of months in operation) (the "Allowed Disruption Time") during which the the Solar System may be temporarily shut down and taken out of operation so that Customer may perform roofing or maintenance work. Customer may accumulate and roll-over such days which are unused in a calendar year into subsequent calendar year; provided, that Customer may not use more than 30 days in any calendar year. Customer agrees to and shall pay Provider an amount with respect to such work equal to Provider's actual and documented removal, storage, and replacement costs in the event that it is required to remove and reinstall its Solar Systems Assets to enable Allowed Disruption Time. (ii) If the Customer requires that all or a portion of the Solar System be temporarily shut down and taken out of operation for an amount of time exceeding the Allowed Disruption Time, except for repairs directly resulting from damage caused by Provider or by those for whom the Provider is legally liable, Customer agrees to and shall pay Provider an amount with respect to such work equal to Provider's actual and documented removal, storage, and reinstallation costs plus any estimated Solar Services not delivered and any lost SMART Tariff revenue during such outage. Following Customer's notice to Provider containing an assurance that an appropriation has been made for payment of the estimated removal, storage, and reinstallation costs (plus amounts owed for estimated Solar Service not delivered and any lost SMART Tariff revenue,if applicable)in the required amount,Provider shall arrange for removing, storing and re-installing the Systems at the Leased Premises. Customer shall reimburse Provider (or, at the Provider's option, make payment directly to the applicable contractor or vendor on Provider's behalf) for the actual documented costs of such removal, storage and reinstallation of the System (plus amounts owed for estimated Solar Services not delivered and any lost SMART Tariff revenue, if applicable) payable under this Section 2.02 (d)(ii) within thirty (30) days following receipt of an invoice from Provider, including reasonably acceptable back up information,with respect thereto. Customer and Provider may agree to increase the Solar Services Rate to reimburse Provider for any costs of removal, storage and reinstallation of the Solar System in lieu of payments upon terms mutually acceptable to the Parties at such time. Provider shall provide full documentation of these losses and costs, together with inputs, calculations and assumptions. (iii) Customer agrees to coordinate such repair work and use Commercially Reasonable efforts to minimize the period of time in which a Solar System or portion thereof is taken out of operation and to mitigate the Provider's loss of revenues by JA0648300.1 1 12 attempting to schedule repair work during times of day and year when insolation is at a minimum. Customer shall provide at least ninety (90) days' prior notice of the need for any extended temporary removal in excess of three (3) consecutive days. (iv) With respect to any Solar System which has been temporarily shut down and taken out of operation as provided in this Section 2.02(d), the Solar Services output of such shut down Solar System shall be estimated by Provider for the period of such shutdown using a PVSyst model and adjusted for the Annual Project Degradation Factor and such estimated output shall be added to actual Solar System output for purposes of determining whether the Guaranteed Annual Solar Services Output has been satisfied. Provider shall submit to Customer its calculations, input and assumptions used to determine its estimate of Solar Services output during such a shutdown. (v) The Parties recognize that during the Term of the Agreement, temporary (not to exceed three (3) consecutive days) shut-offs of a the Solar System may be necessary as a result of emergency conditions affecting the LDC distribution system outside the control of the Parties and that such shut offs also may protect the Systems and the Premises from damage ("Emergency Shutoffs"). Provider will train Customer's representative(s) on Provider operations and monitoring (for informational purposes only) and emergency preparedness and response, it being acknowledged by Customer that Customer shall not operate the Systems, except in the case of an emergency where immediate action on the part of the Customer is reasonably necessary for safety reasons. In the event of an emergency where immediate action on the part of Customer is reasonably necessary for safety reasons, Customer may, but is not obligated to shut down or disconnect the Systems and provide immediate notice to Provider, but otherwise Customer shall not be permitted to perform any maintenance or repair on the Systems. In the event of an Emergency Shutoff, the Customer shall not be liable to Provider for any lost revenue payments under Section 2.02(d)(ii) of this Agreement during the period of any Emergency Shutoff unless, in the event Customer shuts off or disconnects a System, Customer does not notify Provider as required in this subsection. Any output of the Solar System during such Emergency Shutoffs shall be estimated by Provider. Such output shall be added to actual Solar System output for purposes of determining whether the Guaranteed Annual Solar Services Output has been satisfied. ARTICLE 111. PRICE AND PAYMENT; CONDITIONS PRECEDENT 3.01 Consideration. Notwithstanding any other provision of this Agreement, Customer shall pay to Provider a monthly payment (the "Services Payment") for the Solar Services and Storage Services delivered to Customer. For any billing period, the Services Payment shall equal the -product of the Solar Services output, as metered at each Delivery Point, multiplied by the relevant Solar Services Rate as specified in Schedule 3 to this Agreement. Provider shall invoice Customer on a monthly basis. The first invoice shall include any production that occurred prior to the initial invoice date, including any test energy as provided in Section 4.02 below, provided Customer receives electricity, Net Metering Credits from the Local Electric Utility for such production. The last invoice shall include production only through the date on which the Agreement expires or is earlier terminated. Customer shall pay any Services Payment invoiced within thirty (30) days of receipt thereof, subject to the other provisions of this Agreement. JA0648300.1 1 13 3.02 Method of Payment.Customer shall make all payments under this Agreement either by electronic funds transfer to the account designated by Provider, or by check. All payments that are not paid when due shall bear interest accruing from the date becoming past due until paid in full at the Stated Rate, subject to the other provisions of this Agreement. 3.03 Confirmation of Net Metering Credits. During the first Contract Year, Provider shall assist Customer in confirming that 100% of the anticipated Net Metering Credits allocable to Customer hereunder have been properly credited against Customer's monthly utility bills at the correct Net Metering kWh dollar values. Customer shall forward to Provider the LDC monthly utility bills for the accounts listed on the Schedule Z (or other applicable LDC schedule). Provider shall review such bills and compare them to Provider's records with regard to production by the System during the period covered by such bills to confirm that the correct amount of Net Metering Credits are appearing on the LDC bills at the correct Net Metering Credit kWh dollar value. If Customer or Provider believes that there is an error in the allocation of Net Metering Credits to the applicable LDC bills, or an error in the Net Metering Credit kWh dollar values applied, Provider shall contact the LDC on Customer's behalf and attempt to obtain the information necessary to confirm whether the Net Metering Credits have been correctly credited and applied, and shall assist Customer in obtaining any missing Net Metering Credit total dollar values from the LDC, provided that neither party hereto shall be required to incur any out of pocket costs, including without limitation any legal fees or consultant costs,in order to do so. In addition,within ninety (90) days following the end of each Contract Year, Provider shall prepare a reconciliation of the Net Metering Credits allocable to such Contract Year,based on the Solar System production during such Contract Year, and the amount of Net Metering Credits credited to Customer's accounts by the LDC, and the Net Metering Credit kWh dollar values during such period. If there is any discrepancy between the amount of Net Metering Credits allocable to the accounts and the actual amount credited to the accounts or the Net Metering Credit kWh dollar values, Provider shall contact the LDC on Customer's behalf and attempt to obtain the information necessary to determine how such discrepancy occurred, and shall assist Customer in obtaining any missing Net Metering Credit total dollar value from the LDC, provided that, as aforesaid, neither party hereto shall be required to incur any out of pocket costs, including without limitation any legal fees or consultant costs, in order to do so. 3.04 Payment Disputes. A Party may in good faith dispute the correctness of any invoice (or any adjustment to any invoice) under this Agreement at any time within thirty (30) days of receipt of the Contract Year reconciliation provided by Provider pursuant to Section 3.03. In the event that either Party disputes any invoice or invoice adjustment, such Party shall pay the undisputed amount of the applicable invoice or invoice adjustment on the applicable payment due date, and may withhold the disputed amount, and shall give notice of the objection to the other Party. If a Dispute arises with respect to any invoice, such Dispute shall be resolved pursuant to Article IX hereto. 3.05 Change in Law. In the event that a change in Applicable Law occurs, including without limitation, a change in the Massachusetts SMART Program, or the administration of interpretation thereof by the Massachusetts Department of Public Utilities or the LDC ("Change in Law") which (a) materially restricts the ability of Provider to deliver Solar Services generated by the Solar System to Customer or the ability of electricity generated by the System to be delivered to the LDC or the Customer or the ability of Customer to receive Net Metering Credits JA0648300.1 1 14 or the ability of Storage System to be operated; or (b) otherwise materially impacts the ability of either Party to perform its obligations under this Agreement, including changes in Law that result in a material increase in Provider's costs of construction and installation, or operation of one or more System, then, upon a Party's receipt of notice of such Change in Law from the other Party, the Parties shall promptly and in good faith endeavor to negotiate such amendments to or restatements of this Agreement as may be necessary to achieve the allocation of economic benefits and burdens originally intended by the Parties, subject to Applicable Law. Without limiting the foregoing, such amendments may include an amendment and restatement of this Agreement in the form of a Net Metering Credit or Alternative On-Bill Credit purchase agreement. If the Parties are unable, despite good faith efforts, to reach agreement on an amendment or restatement within one hundred twenty (120) days, either Party may terminate this Agreement without penalty for such termination, provided, however, that the Parties shall remain subject to any liabilities and obligations under this Agreement that had arisen prior to the date of termination, or from a provision of this Agreement that expressly survives termination, provided further that during the aforesaid one hundred twenty(120)day negotiation period,Customer shall not be required to make Services Payments if Customer is not receiving Solar Services and Storage Services and Net Metering Credits. No early termination charges shall apply to a Change in Law event. 3.06 Changes in Environmental Incentives. In the event a change in Law occurs that results in additional Environmental Incentives attributable to the System,the Parties shall promptly and in good faith endeavor to negotiate such amendments to or restatements of this Agreement as may be necessary to achieve the allocation of economic benefits and burdens originally intended by the Parties, subject to Applicable Law. 3.07 'Prevailing Waae. Provider hereby certifies and agrees that it is aware of the provisions of Massachusetts General Law,Chapter 149 as they pertain to the Systems,which refers to the prevailing wage rate minimums as set forth by the Massachusetts Department of Labor and Industries, 100 Cambridge Street,Boston,MA 02202. The appropriate prevailing wage regulations relating to the Systems will be upheld and in force throughout all appropriate times under this Agreement. 3.08 Statement of Qualifications. The Provider shall use Commercially Reasonable efforts to obtain a Statement of Qualification for the Systems as BTM Systems with battery storage under the SMART Program in the lowest number Block and Tranche with the highest incentive value available from such program available at the time of application for the Statement of Qualifications. The Parties agree that the Solar Service Rate shall be adjusted based on the incentives offered under such block of the SMART Program in accordance with Exhibit C. In the event thatProvider is required by the LDC to interconnect the Solar System in front of the meter, the Parties agree that the Solar Services Rate shall be adjusted to reflect the SMART Program incentive offered for such meter configuration as a discount to the Net Metering Credit Value. Promptly upon receipt of acceptance into the SMART Program, Provider shall provide written notice to Customer confirming the applicable Block and Tranche of the SMART Program for the Project and the adjusted Solar Services Rate (the "SMART Notice"). If the adjusted Solar Services Rate, whether for BTM or ATM, results in a net negative savings to the Customer for Contract Year I (after accounting for the savings under this Agreement and the JA0648300.1 1 15 PILOT Agreement), the Customer shall have the right to terminate this Agreement upon written notice to Provider for a period of ten (10) business days following receipt of SMART Notice by Customer(the "SMART Notice Period"). If the Customer has not provided such notice of termination within the SMART Notice Period, Customer shall be deemed to have waived its right to terminate pursuant to this Section 3.08 and the Solar Services Rate shall be as set forth in the SMART Notice. Customer understands and acknowledges that Provider will submit a Notice-to-Proceed to construct the Facilities until the SMART Notice Period has expired or Customer has affirmatively waived in writing its right of termination under this Section 3.05. 3.09 Storage System; Condition Precedent; Remedies if No Battery. Provider shall use best efforts to obtain from the LDC an Interconnection Services Agreement for the Systems as BTM Systems with battery storage. In the event that: (i) Provider is required by the LDC to interconnect the Solar System in front of the meter; (ii) Provider is unable, despite diligent efforts to obtain an Interconnection Services Agreement for the Storage System as a BTM System with battery storage by July 15, 2020 on terms and conditions acceptable to Provider; (iii) the LDC imposes or charges more than $25,000 for interconnection application costs, utility upgrade costs and utility impact study costs and Customer does not agree within a reasonable time thereafter to increase the Solar Service Rate to account for such costs; or (iv) the Parties mutually agree that the delays in equipment availability are unreasonable; Then, Provider shall have the right to remove the Storage System from this Agreement and upon written notice to Customer from Provider, the Parties agree that this Agreement shall be amended to eliminate the requirement for the Storage System and any associated liquidated damages and the Solar Services Rate shall be adjusted to account for no Storage System in accordance with Schedule 3. ARTICLE IV. CONSTRUCTION AND OPERATION 4.01 Development and Commercial Operation Date/Deadline. (a) Design and Construction. Provider will, at its sole cost and expense, cause the Systems to be designed, engineered,permitted, installed and constructed pursuant to good and prudent industry practice, Applicable Law, Governmental Approvals and the applicable requirements of any Governmental Authority, and shall be responsible, as the Interconnection Customer for the System, for all costs and expenses associated with and arising from interconnection of the System to the Local Electric Utility's electric distribution system ("Development"). Provider shall be solely responsible for the Development of the System. Prior to the commencement of construction, Provider shall coordinate with and receive input from the Customer's designated technical staff and submit final Systems design drawings for approval by JA0648300.1 1 16 the Customer, such approval not to be unreasonably withheld, conditioned or delayed. Provider and Customer agree to the proposed construction schedule set forth in Schedule XXX. (c) Commercial Operation Date. Within seven(7) calendar days of the Systems achieving Commercial Operation, Provider shall certify to the Customer in writing the date on which such the Systems achieved Commercial Operation. (d) Commercial Operation Deadline; Late Completion and Provider Payments. If the Commercial Operation Date for the Systems does not occur on or before the Outside Commercial Operation Date for any reason other than Force Majeure, delays by the LDC in approval or execution of the interconnection agreement completion of studies or any other delay caused by the LDC or Customer, Provider shall pay to Customer liquidated damages ("Delay Liquidated Damages"). Delay Liquidated Damages for the Solar System shall be the product of: (i) the estimated guaranteed daily energy output from the system (kWh) for each day the Solar System fails to achieve the Outside Commercial Operation Date; and(ii)the difference between the Credit Value (or LDC Retail Rate for BTM Systems) and the Solar Services Rate in Schedule 3 for such estimated guaranteed daily energy output; provided in no event shall aggregate Delay Liquidated Damages exceed $5,000. Delay Liquidated Damages may be assessed upon written notice at the discretion of Customer. For the Storage System, Delay Liquidated Damages for each day the Storage System fails to achieve the Outside Commercial Operation Date shall equal the Storage Shortfall Payment set forth in Section 2.02(c). provided in no event shall aggregate Delay Liquidated Damages exceed $51000. Notwithstanding the foregoing, Provider shall not be responsible for Delay Liquidated Damages in the event that Provider cannot satisfy the Outside Commercial Operation Date milestone because Provider lacks a permit, approval or Interconnection Agreement necessary to commence construction and/or Commercial Operation of the System, and Provider is utilizing Commercially Reasonable efforts to secure such permit, approval or Interconnection Agreement ("Approval Delays") or in the event that Provider's schedule is delayed by Customer. Schedule 8 sets forth Provider's initial development and construction schedule with the assumed milestone dates to achieve Commercial Operation on or before the Outside Commercial Operation Date. In the event such milestone dates are not met due to=Force Majeure, Approval Delays, delays by the LDC in completion of studies or any other delay caused by the LDC or Customer or solely with respect to the Storage Assets, delays in equipment delivery, the Outside Commercial Operation Date shall be extended on a day for day basis to account for such delays.=The Parties recognize the delays, expense and difficulties involved in proving the actual losses or damages in a judicial or other proceeding, and agree that the Delay Liquidated Damages are reasonable compensation to Buyer. Delay Liquidated Damages under this Agreement shall not be duplicative of Delay Liquidated Damages under the Lease. (e) Testing. Provider shall conduct such testing of the Systems as may be required by the Local Electric Utility and Applicable Law including, without limitation, M&V Option B pursuant to Section 6.12 in FEMP Guidelines 4.0 and any successor provisions. Provider JA0648300.1 1 17 shall notify Customer of the results of any such testing. Customer will purchase all test energy under the provisions of this Agreement whether such test energy is produced before or after the Commercial Operation Date, provided Customer receives Net Metering Credits or equivalent compensation corresponding to such energy. 4.02 Operations. The Systems shall be owned, operated, maintained,repaired and, at the expiration or earlier termination of the Agreement or Lease unless Customer has exercised the Purchase Option,removed by or for Provider at its sole cost and expense with reasonable diligence and in a Commercially Reasonable manner, and in accordance with its Interconnection Services Agreement with the Local Electric Utility, Applicable Law, Governmental Approvals, the applicable requirements of any Governmental Authority, and good and prudent industry practices. Provider shall use Commercially Reasonable efforts to operate the Solar System and the Storage System (during the Battery Life) in a manner that optimizes energy savings, credits, and storage for the Customer, so long as that operation complies with the SMART Program and the Tax Code to ensure eligibility for available incentive tax credits. 4.03 Battery after End of Batter. Life. At the end of the Battery Life, Customer shall have the option and right to: (a) replace the Storage System with a new battery having the same operational characterics which will comply with the operational requirements and statement of qualification issued for the Storage System under the SMART Program at Customer's cost; or (b) In the event Customer does not elect to replace the Storage System,the existing Storage System shall remain in place for the remainder of the Term and Provider shall have the right to operate the Storage System in a manner deemed necessary by Provider to comply with requirements of a storage system under the SMART Program. Any Storage Attributes shall continue to be owned by the Customer. 4.04 Maintenance and Repair. Provider shall properly maintain the Systems, conduct all required maintenance, and promptly make all repairs thereto in accordance with industry standards and good engineering practices. Such obligations shall include, but not be limited to, maintaining the Systems in a condition of Commercial Operation, and taking all actions necessary to comply with the Applicable Legal Requirements. 4.05 Metering. (a) Monitoring System.Provider shall install a performance monitoring system. Such system shall at minimum meet the requirements for reporting actual production of electricity to the Local Electric Utility and any appropriate state or regional agency. Such system shall include at minimum a state-of-the-art remote data acquisition system(DAS) designed to gather and record system parameters as well as weather related parameters including power, sunlight, wind speed and air temperature from a local area weather station. The monitoring system shall also include data logging and historical data collection capabilities to ensure Customer can observe system JA0648300.1 1 18 performance over time. Provider shall also provide and install a data monitoring LED display at a location of Customer's choosing. Such display shall be web-enabled to demonstrate near real-time performance, and a link may be included on Customer's website. (b) Metering Equipment. Provider shall install and maintain utility-grade, revenue grade kilowatt-hour ("kWh") meters at the Systems as necessary to measure Electricity generated by the Solar System and electricity stored and discharged by the Storage System.. (c) Measurements. Customer shall have access to all Meters (including the meter for the Storage System) data at all times through the data acquisition system to be installed by Provider. Such data shall be made available on a web site. Customer shall have access to each Meter upon prior written notice. Readings of the Meter shall be conclusive as to the amount of Solar Services delivered to Customer; provided, that if the Meter is out of service, is discovered to be inaccurate by more than two percent (2%), or registers inaccurately, measurement of Solar Services shall be determined in the following sequence: (i) by reviewing available inverter logs, showing the hours of operation and kWh generated; (ii) by estimating by reference to quantities measured during periods of similar conditions when Meter was registering accurately; or(iii) if no reliable information exists as to the period of time during which such Meter was registering inaccurately, it shall be assumed for correction purposes hereunder that the period of such inaccuracy was equal to(A)if the period of inaccuracy can be determined,the actual period during which inaccurate measurements were made; or (B) if the period of inaccuracy cannot be determined, one-half (1/2) of the period from the date of the last previous test of such Meter through the date of the adjustments, provided, however, that, in the case of clause (B), the period covered by the correction shall not exceed twelve (12) months. (d) Testing and Correction/Customer's Right to Conduct Tests. If a Meter is out of service, or discovered or believed to be inaccurate, each Party and its consultants and representatives shall have the right to request and witness a test conducted by or under the supervision of Provider to verify the accuracy of the measurements and recordings of the applicable Meter. Provider shall provide at least ten (10) days prior written notice to Customer of the date upon which any such test is to occur. In the event of any testing of a Meter by Provider, Provider shall prepare a written report, to the satisfaction and approval of the Customer, which shall not be unreasonably withheld, setting forth the results of each such test, and shall provide Customer with copies of such written report not later than thirty(30) days after completion of such test. (e) Standard of Meter Accuracy; Resolution of Disputes as to Accuracy. The following steps shall be taken to resolve any disputes regarding the accuracy of the Meter: (f) If either Party disputes the accuracy or condition of the Meter, such Party shall so advise the other Party in writing. (g) The non-disputing Party shall, within fifteen (15) days after receiving such X %­1 notice from the disputing Party, advise the other Party in writing as to its position concerning the accuracy of such Meter and state reasons for taking such position. If the Parties are unable to resolve the dispute, then either Party may cause the Meter to be tested by an agreed upon and disinterested third party. JA0648300.1 1 19 If the Meter is found to be inaccurate by two percent (2%) or less, any previous recordings of the Meter shall be deemed accurate, and the Party disputing the accuracy or condition of the Meter shall bear the cost of inspection and testing of the Meter. If the Meter is found to be inaccurate by more than two percent (2%) or if such Meter is for any reason out of service or fails to register, then(A)Provider shall promptly cause any Meter found to be inaccurate to be replaced or adjusted to correct, to the extent practicable, such inaccuracy, (B) the Parties shall estimate the correct amounts of Solar Services delivered during the periods affected by such inaccuracy, service outage or failure to register in accordance with Section 4.03(b) above, and(C)Provider shall bear the cost of inspection and testing of the Metering. If as a result of such adjustment the quantity of Solar Services or Storage Services for any period is decreased (such quantity, the "Solar Services/Storage Services Deficiency Quantity"), Provider shall reimburse Customer for the amount paid by Customer in consideration for the Solar Services/Storage Services Deficiency Quantity by crediting such amount against Customer's payment obligations under this Agreement, and Provider shall bear the cost of inspection and testing of the Meter. If as a result of such adjustment the quantity of Solar Services/Storage Services for any period is increased (such quantity, the "Solar Service/Storage Service Surplus Quantity"), Customer shall pay for the Solar Services/Storage Services Surplus Quantity at the Solar Services Rate applicable during the applicable Contract Year. 4.04 Outages,. Provider shall be entitled to suspend delivery of electricity to any applicable Meter for the purpose of maintaining and repairing the Systems and such suspension of service shall not constitute a breach of this Agreement; provided that Provider shall use Commercially Reasonable efforts to minimize any interruption in service to Customer, shall comply with all requirements of the Local Electric Utility in connection with any suspension, and shall be responsible for any Production Shortfall or Storage Shortfall. 4.05 Host Customer. At Provider's request, if deemed necessary by Provider, Customer shall take any reasonable action and execute any documents that are necessary to designate Customer as the LDC customer of record for the LDC Metering Device and otherwise establish Customer as the Most Customer for such System for purposes of the SMART Program and the Net Metering Rules, if applicable. Provider shall prepare any such documents as required by the LDC,the Net Metering Rules and the SMART Program for the allocation of New Metering Credits or Alternative On-Bill Credits, including application for a Cap Allocation (if applicable). Customer, shall reasonably cooperate with Provider's preparation of such documents, including, without limitation,by providing information on Customer's existing other accounts with the LDC. Notwithstanding anything to the contrary in this Agreement, Provider shall be responsible, at its cost,to (1)perform, on behalf of Customer, all obligations imposed by the LDC, the Net Metering Rules and the SMART Program upon Customer, as Host Customer (to the extent applicable), except for the obligation(s) to execute any documents that the LDC requires to be executed by the Most Customer; (2)perform all obligations imposed by the LDC upon Provider, as Interconnecting Customer, including, but not limited to, the execution of an Interconnection Agreement with the LDC; (3)pay for all costs and expenses associated with securing the SMART Program Statement of Qualifications for the System and Cap Allocation (as applicable); (4) subject to section 2.2(c)(vii), pay all costs and expenses associated with the interconnection of the System to the LDC System, including all charges associated with the installation, operation, maintenance and replacement of the Meter. Customer shall reasonably cooperate with Provider in connection with Provider's efforts to fulfill its obligations set forth in this Section 4.05, and shall execute such JA0648300.1 1 20 documents required by the LDC to be executed by the Host Customer (if applicable). Except as specifically set forth in this Section 4.05,Provider shall not be responsible for any other payments, charges, fees or costs incurred by Customer under any retail customer(or similar) agreement with the LDC for the Systems. Customer agrees and understands that any such other payments,charges, fees or costs imposed upon Provider by the LDC shall be offset with a corresponding increase to the Solar Services Rate. 4.06 'Public Systems. Customer and Provider acknowledge that, except as otherwise noted on Schedule 2, the Systems will be comprised of a Public Entity Solar Tariff Generation Unit, and agree not to take any action inconsistent with such regulatory status of the System. For the avoidance of doubt, the Parties acknowledge that pursuant to the current SMART Program, in order to obtain and preserve such status, the LDC may not allocate New Metering Credits to the account of any individual or of any entity that is not a city, town, federal agency or department, state agency or department, or any entity that is not approved by DPU as an"Other Governmental Entity." 4.07 Reserved 4.08 Performance Bonds. Prior to the date of execution of this Agreement, Provider has provided to Customer evidence satisfactory to Customer of Provider's bonding capacity. Prior to commencement of construction of the Project, Provider will provide to Customer copies of any and all payment and performance bonds issued to Provider by Provider's subcontractors with respect to the construction of the Project. Such payment and performance bonds provided by Provider's subcontractors shall be equal to 100% of their respective contract values. Failure to provide such payment and performance bonds shall be a Provider default. Customer acknowledges that this Agreement itself is not a construction contract and, therefore, Provider is not able to procure its own typical payment and performance bonds for construction of the Proj ect hereunder. 4.09 CORI and SORI. Upon notice to Provider, Customer may conduct checks of the Criminal Offender Record Information (CORI) maintained by the Massachusetts Department of Criminal Justice Information Services (DCJIS), and the Sex Offender Record Information(SORI) maintained by the Massachusetts Sex Offender Registry Board for any officer or employee of the Provider or of a subcontractor or any person who will work on the System or the Property. The Customer may refuse to allow any such person to work on the Property if the Customer, in its sole discretion, determines that such person is not suitable for work on the Properties based upon the results of such CORI or SORI. All Provider employees and subcontractor employees who will work on the Property shall complete forms related to a CORI and SORI and present identification at the Lexington Department of Public Facilities, 201 Bedford Street, Lexington, MA 02420, which which Customer may rely upon to initiate a CORI and SORI search. Such CORI and SORI checks must be updated every three years. 4.10 Prohibition On Interaction With Students And Teachers. Employees and agents of the Provider and the Provider's contractors and subcontractors (including installers) shall avoid interaction with students and teachers. In addition, the employees and agents of the Provider and the Provider's contractors and subcontractors shall avoid interaction with Customer's employees not directly involved in providing Provider access to the Property, unless interaction with such employees is authorized in this Agreement or by the Superintendent or School Principal. The JA0648300.1 1 21 Customer shall have the right to require that the Provider permanently remove from the Property any of its or its contractor's or subcontractor's employees on account of inappropriate interaction with students, including but not limited to the use of vulgar language, sexually suggestive statements and any inappropriate physical contact. 4.11 Record Plans. Within ninety (90) days following the issuance of the Notice of Commercial Operation, Provider shall prepare and deliver to Customer detailed record plans accurately depicting the Systems, including, without limitation, interconnection applications and utility agreements, all wiring, lines, conduits, piping, other structures or equipment and the software controls manual. 4.12 Operations Manual; Training. On or before the Commercial Operation Date, and at the expiration of the Term, if Customer exercises the Purchase Option as provided in Section 13 hereof, Provider shall shall deliver to Customer a current operation, maintenance and parts manual for the Systems. 4.13 Mechanics Liens. Provider shall not file any mechanics liens against Customer for its work performed in accordance with this Agreement and this requirement shall flow down to all of Provider's contractors. If any mechanic's, laborer's or materialman's lien shall at any time be filed against the Property, the Leased Premises or the Systems, Provider, within ten (10) days after notice to Provider of the filing thereof, shall cause such lien to be discharged of record by payment, deposit, bond, insurance, order of court of competent jurisdiction or otherwise. If Provider fails to cause such lien to be discharged within the period aforesaid, then, in addition to any other right or remedy, Customer may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding. Any amount so paid by Customer and costs and expenses, including court costs and attorney's fees reasonably incurred by Customer in connection therewith, together with interest thereon at the Stated Rate from the respective dates of Customer's making of the payment of the cost and expenses, shall be paid by Provider to Customer within ten (10) Business Days of Customer's invoice therefor. ARTICLE V. TITLE TO SOLAR SYSTEM AND STORAGE SYSTEM 5.03 Title to Systems.Unless Customer purchases the Systems,Provider shall retain title to and be the legal and beneficial owner of the Systems at all times.Absent further written election by Provider, the Systems shall (i) remain the personal property of Provider and shall not attach to or be deemed a part of,or fixture to,the Leased Premises, and(ii) at all times retain the legal status of personal property as defined under Article 9 of the applicable Uniform Commercial Code. Customer warrants and represents that it shall not lien the System. Provider shall be entitled to, and is hereby authorized to, file one or more precautionary UCC Financing Statements or fixture filings, as applicable, in such jurisdictions as it deems appropriate with respect to the System in order to protect its title to and rights in the Systems. The Parties intend that neither Customer nor any party related to Customer shall acquire the right to operate the Systems or be deemed to operate the Systems for purposes of Section 770 1(e)(4)(A)(i) of the Code, as amended, and the provisions of this Agreement shall be construed consistently with the intention of the Parties. The parties intend this Agreement to be treated as a "service contract" within the meaning of section JA0648300.1 1 22 7701(e)(3) of the Internal Revenue Code. As between the Parties, Provider shall retain the exclusive right to take or sell all Systems products, including capacity and all Environmental Attributes and Environmental Incentives, except for the Solar Services purchased by Customer hereunder(including all Net Metering Credits or Alternative On-Bill Credits corresponding to such Solar Services). Customer shall not directly or indirectly permit, create, incur, assume or suffer to exist any lien attributable to Customer on the Systems, and if there shall nonetheless be such a lien, Customer hereby agrees that it shall, at its expense, cause the same to be duly discharged and removed within thirty days of notice of such lien. 5.04 'Ownership of Rebates; Customer Rebate Assistance. All Rebates available in connection with the System are owned by Provider. Customer shall reasonably cooperate with Provider, at Provider's sole cost and expense, in obtaining all Rebates currently available or subsequently made available in connection with the System. 5.05 Risk of Loss; Exclusive Control. As between the Parties, Provider will at all times be deemed to be in exclusive control of the Solar Services and shall bear the risk of loss of the Solar Services until delivery of that production to the Meter, as measured by the Meter. Risk of loss of and title to the Solar Services measured by the Meter will transfer from Provider to Customer at the Meter. 5.06 Governmental Charles. (a) Provider is responsible for local, state and federal income taxes attributable to Provider for income received under this Agreement. (b) Customer shall pay directly or reimburse Provider on an after-tax basis for all sales and use taxes that may be imposed by any Governmental Authority on the sale of Solar Services to Customer. Customer shall provide Provider with its exemption certificate or documentation which may be necessary for Provider to demonstrate to such Governmental Authority that no sales or use taxes should be imposed on Customer as a municipal corporation. (c) The Parties intend to enter into a PILOT Agreement. The payment to be made under the PILOT Agreement of$30,000/MWdc,is carried and included in the Solar Services Rate. In the event that the PILOT Agreement is, at any time during the Term hereof, in excess of $30,000/MWdc or is determined to be invalid due to subsequent legislative action or a final judgment of a court of competent jurisdiction, and the Provider is responsible for the payment of real and personal property taxes assessed to the Licensed Area and/or to the Solar System or Storage System, or is exempt from or subject to a different PILOT amount, a proportionate adjustment to the Solar Services Rate shall be made by Provider as follows: (i) Commencing on the beginning of the month after Provider's receipt of a property tax bill or assessment with respect to a fiscal year or on the effective date of any exemption, or modification of a PILOT payment, the Solar Services Rate shall be adjusted by an amount that is equal to (a)the total amount(in dollars) of such assessment, or $0.00 in the event of a complete exemption, or the modified amount of a new mandated PILOT, minus the annual amount to be paid under the PILOT Agreement ($30,000/MWdc), divided by (b) the estimated Solar Services JA0648300.1 1 23 to be produced by the System for the same period of time covered by the assessment. Adjustments shall be rounded to the nearest one ten-thousandth (1/10,000th) of a dollar. If such adjustment yields a positive amount, the Solar Services Rate shall be increased by such a positive amount. Conversely, if such adjustment yields a negative amount, the Solar Services Rate shall be decreased by such amount. At the end of a fiscal year during which Provider made an adjustment to the Solar Services Rate, the Parties agree to true up the prior fiscal year's Solar Services Rate increase based upon the actual Solar Services produced from the System for such prior year,and make any adjustments as necessary to the following year's Solar Services Rate to reflect such true up. In the event such tax assessment subsequently is adjusted by Customer, the Solar Services Rate shall correspondingly be adjusted. (d) If this Agreement shall be terminated with respect to the System or portion of the System, except in the event of a termination due to a Provider default, the PILOT payment shall be reduced by an amount equal to the product of(i) the total amount of the PILOT payment, and (ii) a fraction, the numerator of which is the system capacity size, measured in kilowatts, of the System or portion of a System being removed from service, and the denominator of which is the total system capacity size,measured in kilowatts,of all System,including the System or portion of the System being removed from service. (e) Both Parties shall use reasonable efforts to administer this Agreement and implement its provisions so as to minimize Governmental Charges. In the event any of the sales of Solar Services hereunder are to be exempted from or not subject to one or more Governmental Charges,the applicable Party shall,promptly upon the other Party's request,provide the applicable Party with all necessary documentation to evidence such exemption or exclusion. 5.05 Records and Audits. Each Party will keep, for a period not less than two (2) years after the expiration or termination of any transaction, records sufficient to permit verification of the accuracy of billing statements, invoices, charges, computations and payments for such transaction. During such period each Party may, at its sole cost and expense, and upon reasonable notice to the other Party, examine the other Party's records pertaining to such=trans actions during such other Party's normal business hours, ARTICLE VI, TERM OF AGREEMENT 6001 Term, The initial term of this Agreement shall commence on the Effective Date and shall continue for a period ending on the last day of the month in which the twentieth (20th) anniversary of the Commercial Operation Date of the System (the "Term"), unless terminated earlier pursuant to this Agreement, 6002 Early Termination by Provider. In the event that any of the following events or circumstances occur after the Effective Date but prior to the Construction Commencement Date, which events or circumstances Provider shall demonstrate to Customer's reasonable satisfaction, Provider may (at its sole discretion) terminate the Agreement, in which case neither Party shall JA0648300.1 1 24 have any liability to the other Party for such termination,except for any liability of Provider arising prior to the date of such termination. (a) There exist site conditions at the Leased Premises (including environmental site conditions) or construction requirements which, despite Provider's examination of the Leased Premises before execution of this Agreement, were not known as of the Effective Date, and which will substantially increase the cost of the construction of the System. This right of termination may only be exercised if Provider first notifies Customer of such conditions and requests a reasonable adjustment to the Solar Services Rate, and Customer does not agree, in its sole discretion, to such adjustment. (b) There is a material, adverse change in the Environmental Attributes or Environmental Incentives of the System or the regulatory environment, incentive program or federal or state tax code (including the expiration of any incentive program or tax incentives in effect as of the Effective Date) that will materially and adversely affect the economics of the installation for Provider and its investors, including any Lender. (c) Provider is unable, after having expended good faith diligent efforts to do so, to obtain financing for the System on reasonable terms and conditions. (d) Provider, is unable, through no fault of its own and despite its diligent efforts, to obtain all Governmental Approvals and any related permits and approvals of any Governmental Authority or from the LDC for installation and operation of the System and for the sale and delivery of Solar Services and Net Metering Credits to Customer, on the terms and conditions contemplated by the terms of this Agreement and reasonably acceptable to Provider; (e) Provider is unable, through no fault of its own and despite its diligent efforts, to obtain a Statement of Qualification for the System under, the SMART Program and qualify the System as an Net Metered Generation Unit under the Net Metering Rules; (f) the LDC imposes or charges more than $25,000 for interconnection application costs, utility upgrade costs and utility impact study costs (said amount being the amount Provider reasonably anticipates as the cost of interconnection and upgrades, if any, as of the Effective Date); provided that such right of termination may be exercised only if(1) Provider requests a reasonable adjustment to the Solar Services Rate for such interconnection costs and Customer, in its sole discretion, does not agree within a reasonable time thereafter (not to exceed forty-five (45) days), such agreement to be evidenced by an amendment to this Agreement executed by Customer and Provider; OR (2) Provider requests that Customer pay any such interconnection and utility costs over $25,000 directly to the LDC (or as otherwise agreed) and Customer does not agree to make such payment within a reasonable time thereafter(not to exceed forty-five (45) days); (g) Customer does not execute an interconnection services agreement as Host Customer with the LDC on the LDC's standard form, within thirty (30) days after receipt of such agreement from the LDC or Provider; (h) Upgrades are required to Customer's existing electrical infrastructure, structural infrastructure or roof and Customer elects, in its sole discretion, not to pay for such JA0648300.1 1 25 upgrades, it being acknowledged by both Parties that neither Party shall be under any obligation to pay for any such upgrades; or (i) Provider has determined that the roof(s) of the building(s) at the Property does not have sufficient load-bearing capacity to support a System and all related foot traffic and construction activities and/or the infrastructure of the building(s) or the ground at such Property cannot support a System. 6.03 Early Termination by Customer. Customer may terminate this Agreement, as specified below, without penalty, in which case neither Party shall have any liability to the other Party for such termination: (a) upon thirty (30) days' notice to Provider in the event that an application for interconnection for the System has not been filed with the Local Electric Utility within forty-five (45) days of the Effective Date; (b) upon thirty (30) days' notice to Provider, in the event that Provider has not reasonably demonstrated to Customer, within one hundred eighty(180) days of the Effective Date (the "Financing Date"), that Provider has obtained financing sufficient to purchase, construct, commission, own and operate the System. The Parties agree that Customer's receipt, within the aforesaid time period, of evidence of a term sheet and commitment letter signed by a Lender shall constitute evidence that Provider has obtained such financing for all purposes under this Agreement and that after said receipt, Provider shall not be eligible to terminate the Agreement under Section 6.02(c); (c) upon thirty (30) days' notice in the event the a System does not qualify or is not qualified as either a Net Metered Generation Unit under the Net Metering Rules or an Alternative On-Bill Generation Unit, as of the Commercial Operation Date, unless such qualification is obtained within such thirty (30) day notice period; (d) upon thirty (30) days' notice in the event Provider has failed to achieve the Outside Construction Commencement Date; provided that the Outside Construction Commencement Date shall be extended equitably, by agreement of the Parties, due to (i) winter weather conditions preventing Provider from beginning physical work, (ii) Force Majeure, (lii) delays in the approval or execution of the interconnection agreement or completion of studies by the LDC or (iv) other impediments to beginning physical work caused or requested by the Customer; (e) upon thirty (30) days' notice in the event that Provider has not prepared, at its cost, an application for the SMART Program with all supporting documentation, within forty five (45) days of Provider's receipt of(1)written notice from the LDC approving interconnection of the System with the LDC System, and (2) a fully-executed Interconnection Agreement, and(3) all non-ministerial permits; or (f) The conditions set forth in Sections 3.08 have not been satisfied. 6.04 Removal of System at Expiration. Unless Customer has exercised the Purchase Option, Provider shall, at Provider's expense, remove all of its tangible property comprising the JA0648300.1 1 26 System from the Leased Premises and restore the condition of the Property to its original condition, normal wear and tear excluded, upon the expiration or earlier termination of the Agreement in accordance with and as set forth in the Lease. 6.05 Security for System Removal. Beginning on the fifteenth (151h) anniversary of the Commercial Operation Date, Customer may request that Provider provide decommissioning assurance in the form of a bond, letter of credit or an escrow account established with a nationally recognized financial institution, to secure the costs to remove the System in an amount not to exceed the amount set forth in Schedule XXX ("Decommissioning Assurance"). Provider shall select the form of Decommissioning Assurance. If Provider selects an escrow account, each year, starting in contract year 15 (or such later year requested by Customer), Provider shall fund one- fifth (or such other pro-rated amount as required) of the required amount. Customer and Provider shall enter into a mutually acceptable escrow agreement with respect to the release of such funds. The requirement for Decommissioning Assurance shall automatically terminate upon Customer's purchase of the System but otherwise shall remain in effect until System removal after termination of this Agreement. Not later than sixty (60) days after Provider's removal of the System and restoration of the Properties is completed,Customer shall release,disclaim or return to the Provider any remaining unexpended portion of the Decommissioning Assurance, including any interest accrued thereon. ARTICLE VII. REPRESENTATIONS AND WARRANTIES 7.01 Each Party represents and warrants to the other as of the Effective Date: (a) Organization; Existence; Good Standing. Such Party is duly organized, validly existing and in good standing in the jurisdiction of its organization. Such Party has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement, and such Party has taken all requisite corporate, body politic or other action to approve the execution, delivery and performance of this Agreement, subject, as to the Town,to Town Meeting authorization. (b) Binding Obligation. This Agreement constitutes its legal, valid and binding obligation enforceable against such Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to creditors' rights generally. (c) No Litigation. There is no litigation, action, proceeding or investigation pending or, to such Party's knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or assets that would materially affect its ability to carry out the transactions contemplated herein. 7.02 ' a Customer Acknowledgement Regrding Inapplicability of Bankruptcy Code Section 366. Customer acknowledges and agrees that, for purposes of this Agreement, Provider is not a "utility" as such term is used in Section 366 of the United States Bankruptcy Code (the '.'Bankruptcy Code"), and Customer agrees to waive and not to assert the applicability of the provisions of Section 366 in any bankruptcy proceeding wherein Customer is a debtor. JA0648300.1 1 27 7.03 Additional Representations by Customer. (a) All consents and approvals necessary to the Customer's execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery and performance. (b) Customer will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. (c) If Customer's performance under this Agreement depends upon the appropriation of funds by its governing body, and if the governing body fails to appropriate the funds necessary for performance, then the Customer shall provide written notice to Provider, and Customer may cancel this Agreement effective at the end of the then-current fiscal year without further obligation except for the payment of the Customer Termination Payment and for any services already performed by Provider prior to the effective date of termination. Customer covenants to include the payments required to fulfill its obligations under this Agreement in any annual (or other) budget submitted for approval by the appropriate governing body and to take all necessary action to ensure funds are available at all necessary times to satisfy its obligations hereunder. (d) Except as previously disclosed in writing to Provider, to Customer's knowledge there are no facts, circumstances or other matters that may interfere with or delay the construction and installation of the System. (e) (1) to the knowledge of Customer, the Property is in violation of Environmental Laws; and (2) Customer has not received written notice from any governmental authority or of any actual or potential violation of or liability under any Environmental Laws with respect to the Property. As used herein"Environmental Laws"means any law, act, order,by-law, regulation, judgment, decree of or by any Governmental Authority and all licenses and permits which may at any time be applicable to a Party's rights and obligations hereunder and which are for the protection of the environment or human health and safety including but not limited to the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act. ARTICLE VIII. DEFAULT AND FORCE MAJEURE 8.01 Provider Defaults. (a) Provider Default Defined. The following events shall be defaults of this Agreement by Provider("Provider Defaults"): (i) If Provider breaches any material term of this Agreement(excluding the failures set forth in sub-sections (a)(ii)-(a)(vi) of this Section 8.01), and (i) if such breach can be cured within thirty (30) days after Customer's notice of such breach and Provider fails to cure within such thirty(30)day period,or if such breach JA0648300.1 1 28 cannot reasonably be cured within such thirty (30) day period despite Provider's prompt commencement and diligent pursuit of a cure, if (ii) Provider fails to promptly commence and diligently pursue and complete said cure within a reasonable period of time if a cure period longer than thirty (30) days is needed, provided that no cure period shall exceed one hundred twenty (120) days; (ii) Provider becomes Bankrupt; (iii) Provider fails to provide credit for any Production Shortfall under Section 2.02(b) or Storage Shortfall Payment under Section 2.02(c), unless such failure is cured within thirty (30) days from Provider's receipt of notice of termination; provided, however, that if any such failure occurs three or more times in any three hundred sixty five (365) day period, even if such failure is cured as aforesaid, such occurrence shall constitute a Provider Default; (iv) Provider sells or conveys the System to a tax exempt entity; or (v) Provider commits a Lessee Default under and as defined in the Lease. (vi) Provider fails to maintain insurance coverage as required in Article X, and Provider fails to cure within such lapse of insurance coverage within ten (10) days of notice by Customer. 8.02 Customer Defaults. (a) Customer Default Defined. The following events shall be defaults with respect to Customer(each, a"Customer Default"): (i) Customer fails to pay Provider any undisputed amount due Provider under this Agreement within thirty (30) days from receipt of written notice from Provider stating the existence (and the amount) of such past due amount; (ii) Customer breaches any material term of this Agreement if(A) such breach can be cured within thirty (30) days after Provider's notice of such breach and Customer fails to so cure, or (B) Customer fails to commence and diligently pursue and complete said cure within a reasonable period of time if a cure period longer than thirty (30) days is needed; (iii) Customer becomes Bankrupt; or (iv) Customer commits a Lessor Default under and as defined in the Lease. 8.03 Remedies for Event of Default. If at any time an Event of Default with respect to a Party (a "Defaulting Party") has occurred and is continuing beyond applicable notice and cure periods, the other Party(the "Non-Defaulting Party") shall,without limiting the rights or remedies available to the Non-Defaulting Party under this Agreement or applicable Law, have the right to JA0648300.1 1 29 any of the following: (a) by notice to the Defaulting Party, to designate a date, not earlier than twenty (20) Business Days after the date such notice is effective, as an early termination date ("Early Termination Date") in respect of this Agreement; (b) to withhold any payments due to the Defaulting Party under this Agreement; and(c)to suspend performance due to the Defaulting Party under this Agreement and(d) exercise all other rights and remedies available at law or in equity to the Non-Defaulting Party. (a) Customer Rights upon Termination for Default. In the event that Customer is the Non-Defaulting Party and elects to terminate this Agreement as provided in Section 8.03, Customer shall, at its sole and exclusive option and in its sole and absolute discretion require Provider to remove the System as provided in Section 6.04 above and pay the Provider Termination Payment to Customer. In the event that Customer elects the foregoing remedies, such express remedy or remedies and any associated measure of damages shall be the sole and exclusive remedy available to Customer as a result of termination of this Agreement subject, however, to subsection (f)below. (b) Provider Rights upon Termination for Default. In the event that Provider is the Non-Defaulting Party and elects to terminate this Agreement as provided in Section 8.03, Provider shall, at its sole and exclusive option and in its sole and absolute discretion, remove the System and require Customer to pay the Customer Termination Payment. In the event that Provider elects the foregoing remedy, such express remedy and any associated measure of damages shall be the sole and exclusive remedy available to Provider as a result of termination of this Agreement subject,however, to subsection(f)below. In the event Provider elects to terminate this Agreement as provided in this Section 8.03(b), in order to reduce or eliminate Customer's payment of the Customer Termination Payment, Provider and Customer may, but are not obligated, to negotiate Provider's continued lease of the Property for purposes set forth in the Lease, subject to compliance with procurement regulations and Applicable Law, but with the sale of Solar Services to one or more parties other than Customer and on such other terms and conditions as the parties may agree. (c) Termination Payment Notice. In the event that a Non-Defaulting Party elects to require payment of the Customer Termination Payment or Provider Termination Payment as provided in Section 8.03 herein,then,the Non-Defaulting Party will notify the Defaulting Party of the amount due and outstanding under this Agreement. Such notice will include a written statement explaining in reasonable detail the calculation of such amount. In the event that the Defaulting Party is the Provider, the Defaulting Party shall pay the applicable Termination Payment and any amount otherwise due and outstanding under this Agreement to the Non- Defaulting Party within thirty (30) Business Days after the effectiveness of such notice. In the event that the Defaulting Party is the Customer, Customer shall pay the Termination Payment as quickly as practicable within applicable internal processing constraints, including claims processing time for Customer's insurer. (d) Closeout Setoffs. The Non-Defaulting Party shall be entitled, at its option and in its discretion,to set off, against any amounts due and owing from the Defaulting Party under this Agreement, any amounts due and owing to the Defaulting Party under this Agreement. JA0648300.1 1 30 (e) Remedies Cumulative. Except as otherwise provided in Sections 8.03(a) and 8.03(b), the rights and remedies contained in this Section 8.03 are cumulative with the other rights and remedies available under this Agreement or at law or in equity. (f) Unpaid Obligations. The Non-Defaulting Party shall be under no obligation to prioritize the order with respect to which it exercises any one or more rights and remedies available under this Agreement. Notwithstanding anything to the contrary herein, the Defaulting Party shall in all events remain liable to the Non-Defaulting Party for any amount payable by the Defaulting Party in respect of any of its obligations remaining outstanding after any such exercise of rights or remedies. 8.04 Force Majeure. A "Force Majeure Event" means any cause not within the reasonable control of the affected Party which precludes that Party from carrying out, in whole or in part, its obligations under the Agreement, including, but not limited to, Acts of God; winds; hurricanes;tornadoes; fires; epidemics; landslides; earthquakes; floods; other natural catastrophes; strikes; lock outs; acts of public enemies; acts, failures to act or orders of any kind of any Governmental Authority acting in its regulatory or judicial capacity; insurrections; military action; war,whether or not it is declared; sabotage; riots; civil disturbances or explosions. Nothing in this provision is intended to excuse either Party from performing due to any governmental act, failure to act, or order, where it was reasonably within such Party's power to prevent such act, failure to act, or order. Notwithstanding anything in the Agreement to the contrary, Force Majeure shall not mean: (a) Ordinary inclement weather affecting construction, start-up, operation, or decommissioning of the PV System. (b) Unavailability of sun. (c) Unavailability of equipment,repairs or spare parts for the System, except to the extent due to a qualifying event of Force Majeure. (d) Any nonpayment under this Agreement or any third party agreement. (e) Economic hardship of either Party. (f) Breakdown or nonperformance of Solar System Assets or Storage System Assets. Notwithstanding any other term hereof,no payment obligation of Customer under this Agreement may be excused or delayed as the result of a Force Majeure Event, unless as a result of such event or Provider's efforts (or lack thereof)to overcome such an event, Customer does not receive Solar Services and Net Metering Credits or Alternative On-Bill Credits, in which event Customer shall not be required to pay for Solar Services not received, or for Solar Services for which corresponding Net Metering Credits or Alternative On-Bill Credits have not been received, by Customer. Force Majeure will not be based on (i) Customer's inability to economically use Solar Services purchased hereunder, or(ii)Provider's ability to sell Solar Services at a price greater than the Solar Services Rate under this Agreement. A Party claiming a Force Majeure Event shall not be considered in breach of this Agreement or liable for any delay or failure to comply with the JA0648300.1 1 31 Agreement, if and to the extent that such delay or failure is attributable to the occurrence of such Force Maj eure Event;provided that the Party claiming relief shall promptly notify the other Party in writing of the existence of the Force Majeure Event, exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, and resume performance of its obligations hereunder as soon as practicable thereafter. A Force Majeure event shall not include ordinary or reasonably foreseeable fluctuations in insolation/sunlight or be based on the economic hardship of either Party.If a Force Majeure Event shall have occurred that has materially affected either Party's ability to perform its obligations hereunder and that has continued for a continuous period of nine (9) months, then the other Party shall be entitled to terminate the Agreement upon ten (10) days' prior written notice. Upon such termination for a Force Majeure Event, neither Party shall have any liability to the other (other than Provider's obligation to remove the System and restore the Leased Premises in accordance with the Lease, and any such liabilities that have accrued or arise from events occurring prior to such termination). 8.05 Limitation of Remedies, Liability and Da (a) The Parties confirm that the express remedies and measures of damages provided in this Agreement satisfy the essential purposes hereof. For breach of any provision for which an express remedy or measure of damages is provided, such express remedy or measure of damages will be the sole and exclusive remedy, the obligor's liability will be limited as set forth in such provision and all other remedies or damages at law or in equity are waived. If no remedy or measure of damages is expressly provided herein, the obligor's liability will be limited to direct actual direct damages only, and such direct actual damages will be the sole and exclusive remedy and all other remedies or damages at law or in equity are waived. Except for payment of the Termination Payments or except as otherwise provided herein, in no event shall either party be liable to the other party for consequential, incidental, punitive, exemplary or indirect damages, including but not limited to, loss of profits or revenue, downtime costs,loss of use of any property, cost of substitute equipment or facilities, whether arising in tort, contract or otherwise. This Section 8.05 shall survive termination of this Agreement. For greater clarity,the Parties agree that the Termination Payments do not constitute consequential, incidental, punitive, exemplary or indirect damages. (b) EXCEPT AS EXPRESSLY DISCUSSED IN SECTION XI, THE SOLAR SERVICES PROVIDED TO CUSTOMER WILL BE AS IS, WHERE IS, AND ALL OTHER WARRANTIES, IMPLIED OR EXPRESS, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY PROVIDER. CUSTOMER ACKNOWLEDGES THAT SOLAR SERVICES FROM THE SYSTEM ARE INTERMITTENT, AND CUSTOMER IS RESPONSIBLE FOR MEETING ANY AND ALL OF ITS ENERGY NEEDS NOT MET FROM THE SYSTEM- GENERATED ENERGY AT CUSTOMER'S SOLE COST AND EXPENSE. CUSTOMER IS RESPONSIBLE FOR INSTALLATION AND OPERATION OF ANY EQUIPMENT ON CUSTOMER'S SIDE OF THE DELIVERY POINT NECESSARY FOR ACCEPTANCE AND USE OF THE SOLAR SERVICES. (c) No Waiver of Massachusetts Tort Claims Act. Except as provided in Article Vill, nothing contained in this Agreement shall constitute a waiver of the limitations on liability JA0648300.1 1 32 of Customer under the Massachusetts Tort Claims Act, General Laws Chapter 258, as from time to time amended. ARTICLE IX. DISPUTE RESOLUTION Disputes regarding changes in and interpretations of the terms or scope of the Agreement and denials of or failures to act upon claims shall be resolved according to the following procedures: (a) Notice of Dispute/Negotiated Resolution. In the event that there is any controversy,claim or dispute between the Parties hereto arising out of or related to this Agreement, or the breach hereof, the Parties shall attempt to resolve the dispute informally for a period not to exceed thirty(30) days. If the Parties do not resolve the dispute either Party may,by written notice to the other, request more formal negotiations as provided for hereunder. The written notice invoking these further negotiations shall set forth in reasonable detail the nature, background and circumstances of the controversy, claim or dispute. During a twenty (20) Business Day period following a party's receipt of said written notice, the Parties shall meet, confer and negotiate in good faith to resolve the dispute. (b) In the event that any controversy, claim or dispute between the Parties hereto arising out of or related to this Agreement, or the breach hereof, cannot be settled or resolved amicably by the Parties during the twenty (20) Business Day period of good faith negotiations provided for above, then either or any Party hereto may resort to any and all available judicial forums, as provided for under Section 14.08 of this Agreement. ARTICLE X. INSURANCE., CASUALTY AND CONDEMNATION 10.01 Provider shall maintain, throughout the Term the following insurance with companies that are authorized and licensed in the Commonwealth of Massachusetts to issue policies for the coverages and limits so required. Customer shall purchase insurance for or self- insure for the types of risks covered by commercial general liability, automobile liability and worker's compensation. i. Workers' Compensation Insurance as required by the laws of the Commonwealth of Massachusetts and employer's liability insurance in the amount of $50000 by accident, each accident/$5 00,000 by disease, each employee/$5 00,000 by disease, policy limit. ii. Commercial General Liability Insurance, $2,000,000 each occurrence and $4,000,000 aggregate limit. Commercial General Liability insurance shall include personal injury liability, broad form property damage liability, products/completed operations liability and broad form contractual liability. iii. Automobile Liability Insurance - Combined single limit of$1,000,000. JA0648300.1 1 33 iv. Professional Liability Insurance, covering errors and omissions, $2,000,000 each occurrence and $4,000,000 aggregate limit. V. Excess Liability Insurance, Umbrella Form - $2,000,000 each occurrence and $5,000,000 aggregate, which shall be following form, providing coverage over commercial general liability insurance, automobile liability insurance, professional liability insurance, and employer's liability under workers' compensation insurance. vi. The Customer shall be named as an additional insured on each such policy of Commercial General Liability Insurance, Excess Liability Insurance, Umbrella Form, and Automobile Liability Insurance. vii. Certificates evidencing such insurance shall be furnished to Customer on the first anniversary of the Commercial Operation Date and each anniversary of the Commercial Operation Date thereafter during the Term. viii. Provider may satisfy the insurance obligations above by ensuring that its subcontractors provide and maintain such insurance coverage. 10.02 Systems Loss. (a) Provider shall bear the risk of any Systems Losses, except to the extent such Systems Losses results from the negligence of Customer or Customer's agents, representatives, vendors, employees, contractors (collectively, "Customer Misconduct"). (b) Partial Loss. In the event of any Systems Losses that results in less than total damage, destruction or loss of the Systems,this Agreement will remain in full force and effect and Provider will, at Provider's sole cost and expense, subject to the provisions below, repair or replace the Systems. Subject to M.G.L. c. 258,to the extent applicable,to the extent of any System Loss that results in less than total damage, destruction or loss of the Systems, and is caused by Customer Misconduct, Customer shall promptly upon demand therefore from Provider pay any and all costs and expenses of such repair or replacement, including any lost revenues for sales of Solar Services and loss of Environmental Attributes and Environmental Incentives based upon the estimated energy production capacity of the Systems in the relevant Contract Year, to the extent permitted by Applicable Law. Subject to M.G.L. c. 258, to the extent applicable, in the event Systems Loss is caused by Customer Misconduct, then after written demand from Provider, Customer shall pre-pay or post security acceptable to Customer for any repair expenses reasonably estimated by Provider. Customer shall pay as quickly as practicable within applicable internal processing constraints, including claims processing time for Customer's insurer. (c) Total Loss. In the event of any System Loss that, in the reasonable judgment of Provider, results in total damage, destruction or loss of the System, Provider shall, within sixty (60) Business Days following the occurrence of such System Loss, notify Customer whether Provider is willing, notwithstanding such System Loss, to repair or replace the System. In the event that Provider notifies Customer that Provider is not willing to repair or replace the System following a total loss, this Agreement will terminate automatically effective upon the JA0648300.1 1 34 effectiveness of such notice and Provider shall within a reasonable time remove the System from the Lease Premises in accordance with Section 6.04. Subject to M.G.L. c. 258, to the extent applicable, if such System Loss was caused by Customer Misconduct, Customer shall pay to Provider, as liquidated damages, the Customer Termination Payment as of such termination date. Customer shall pay as quickly as practicable within applicable internal processing constraints, including claims processing time for Customer's insurer. (d) In the event that Provider notifies Customer that Provider is willing to repair or replace the System following a total loss, the following shall occur, (A) this Agreement will remain in full force and effect, (B) Provider will repair or replace the System as quickly as practicable, and (C) if such System Loss has been caused partially or totally by Customer Misconduct, Customer shall promptly upon demand therefore from Provider pay any and all costs and expenses of such repair or replacement, lost revenues for sales of Solar Services, loss of Environmental Attributes and Environmental Incentives, in each case based upon the estimated energy production capacity of the system in the relevant Contract Year, subject to M.G.L. c. 258, to the extent applicable,. After written demand from Provider, in the case of Customer Misconduct,Customer shall pre-pay or post security acceptable to Provider for any repair expenses reasonably estimated by Provider. Customer shall pay as quickly as practicable within applicable internal processing constraints, including claims processing time for Customer's insurer. ARTICLE XI. ASSIGNMENT 11.01 Generally. This Agreement and the rights and obligations under this Agreement shall be binding upon and shall inure to the benefit of Provider and Customer and their respective successors and permitted assigns. Except as provided in this Agreement, neither Party shall have the right to assign or transfer, whether voluntarily or by operation of law, any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Any purported assignment in violation of this Article XI shall be null and void ab initio. 11.02 Assignment by Customer. Customer shall not assign its interests in this Agreement, nor any part thereof, without Provider's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that without Provider's prior written consent, Customer may sell Net Metering Credits or Alternative On-Bill Credits corresponding to the Solar Services to another"municipality or other governmental entity,"as that phrase is defined in the Net Metering Rules, provided that Customer shall be responsible to pay for such Solar Services in accordance with this Agreement notwithstanding any such sale. 11.03 Assignment by Provider. (a) Notwithstanding anything to the contrary herein,Provider may assign all or a portion of its rights and obligations hereunder to (i) to one or more Affiliates of Provider, (ii) to any person succeeding to all or substantially all of the assets of Provider, (iii) to an entity that acquires the System or, prior to the construction of the System, the development rights thereto (each, a"Permitted Transfer"), or(iv) any person who after the Effective Date acquires controlling membership interest in the Provider, so long as the assignee has demonstrable experience in JA0648300.1 1 35 operating and maintaining solar photovoltaic systems comparable to the System; and has demonstrable financial capability to maintain the System, the performance guarantee and the Decommissioning Assurance. In the event of any such assignment,Provider shall provide advance written notice to Customer of the proposed assignment,together with the name and address of the assignee, and documentation establishing that the assignee as of the closing of such transaction will assume all or a portion of the Provider's rights and obligations under this Agreement. Customer agrees to promptly execute any document reasonably requested in acknowledgement of such assignment and in consent thereto in accordance with the provisions hereof. If such assignment is a full assignment of all of Provider's rights, and obligations under this Agreement, then Provider shall have no further liability arising under this Agreement after the effective date of the assignment. (b) [Intentionally deleted.] (c) Customer agrees that this Agreement shall survive any transfer of the Properties. In furtherance of the foregoing, Customer agrees that it shall cause any purchaser, assignee, or mortgagee of the Properties to execute and deliver to Provider an assignment and assumption of this Agreement simultaneously with the transfer of the Properties to such purchaser, assignee or mortgagee. Such assignment and assumption agreement shall contain an acknowledgement by the purchaser, assignee or mortgagee that it has no interest in the System and shall not gain any interest in the System by virtue of the transfer, other than the rights of Customer hereunder. 11.04 Financing Provisions. Notwithstanding any contrary provisions contained in this Agreement, including without limitation Section 11.03(a) and 11.03(b), Customer specifically agrees, without any further request for prior consent but with advance written notice to Customer which will identify any such assignee, to permit Provider to assign, transfer or pledge its rights under this Agreement and its rights and title to the System for the purpose of obtaining financing or refinancing in connection with the Project (including, without limitation, pursuant to a sale- leaseback or partnership flip transaction) and to sign any agreement reasonably requested by Provider or its lenders to acknowledge and evidence such agreement;provided,however,that such agreement does not adversely affect the rights of Customer or materially alter the obligations owed to Customer under the terms of this Agreement. 11.05 Third Party Rights. (a) Notice to Designated Third Party. Customer agrees to give copies of any notice provided to Provider by Customer under Section 8.03 to any assignee or transferee permitted pursuant to Section 11.04 (each, a"Designated Third Party"). (b) Exercise of Provider Rights. Any Designated Third Party, as collateral assignee and if allowed pursuant to its contractual arrangements with Provider, shall have the right in the place of Provider,to any and all rights and remedies of Provider under this Agreement. Such Designated Third Party shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement, subject to the terms of this Agreement. JA0648300.1 1 36 (c) Performance of Provider Obligations. A Designated Third party shall have the right,but not the obligation,to pay all sums due under this Agreement and to perform any other act, duty or obligation required of Provider hereunder or cause to be cured any default of Provider hereunder in the time and manner provided by and subject to the terms of this Agreement. Nothing herein requires the Designated Third Party to cure any default of Provider under this Agreement or (unless such party has succeeded to the Provider's interests under this Agreement) to perform any act, duty or obligation of Provider under this Agreement, but Customer hereby gives such party the option to do so,provided any such cure,act,duty or obligation is performed in accordance with the terms of this Agreement. (d) Exercise of Remedies. Upon the exercise of secured party remedies, including any sale of one or more of the System by a Designated Third Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Provider to the Designated Third Party (or any assignee of the Designated Third Party) in lieu thereof, the Designated Third Party shall give notice to Customer of the transferee or assignee of this Agreement. Any such exercise of secured party remedies shall not constitute a default under this Agreement, unless the act of exercising such remedy itself constitutes an Event of Default. (e) Customer agrees that each Designated Third Party is a third party beneficiary of the provisions of this Section. (f) Customer shall not exercise any rights to terminate or suspend this Agreement unless it shall have given the Designated Third Party a copy of prior written notice of its intent to terminate or suspend this Agreement specifying the condition giving rise to such right, and the Designated Third Party shall not have caused to be cured the condition giving rise to the right of termination or suspension: (i) within ten (10) days after Provider's cure period for failure to maintain insurance requirements: (ii) within ninety (90) days after Provider's cure period expires with respect to payment defaults (iii) within one hundred twenty (120) days with respect to all other defaults. The parties' respective obligations will otherwise remain in effect during any cure period (g) If pursuant to an exercise of remedies by a Designated Third Party, such party or its assignee shall acquire control of the System and this Agreement, and shall within the time periods describe in the preceding paragraph(f)cure all defaults under this Agreement existing as of the date of such change in control in the manner required by this Agreement,then such person or entity shall no longer be in default under this Agreement and this Agreement shall continue in full force and effect. (h) Customer agrees to cooperate with Provider and its financing parties in connection with any financing or refinancing of all or a portion of the System. In furtherance of the foregoing, as Provider or its financing parties request from time to time, Customer agrees, subject to the other provisions of this Agreement, to (i) execute any consents to assignment or JA0648300.1 1 37 acknowledgements, (ii) negotiate and deliver such reasonable estoppel certificate as an existing or prospective Designated Third Party may reasonably require, and (iii) furnish such reasonable information as Provider and its financing parties may reasonably request. ARTICLE XII. INDEMNIFICATION 12.01 The Provider shall indemnify, defend, and hold harmless the Customer and all of its officers, employees, boards, commissions, and representatives from and against all claims, causes of action, suits, costs, damages, and liability of any kind("Losses") from or to third parties which arise out of the performance of Provider's work, provided that such Losses are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property but only to the extent caused by the negligent or intentional acts or omissions of the Provider, its employees, agents, subcontractors, or anyone directly or indirectly employed by them or anyone for whose acts Provider is legally liable. This indemnity obligation shall apply notwithstanding any negligent or intentional acts,errors or omissions of the Customer,but the Provider's obligation to pay Losses shall be reduced in proportion to the percentage by which the Customer's negligent or intentional acts, errors or omissions caused the Losses. 12.02 To the extent permitted by law and not prohibited by Section 7 of Article 2 of the Constitution of the Commonwealth of Massachusetts or Massachusetts General Laws Chapter 44, Section 31, Customer shall indemnify, and hold harmless Provider from and against any and all Losses from or to third parties for injury or death to persons or damage or loss to or of property to the extent arising out of the negligent or intentional acts or omissions of the Customer, its employees, agents, subcontractors or representatives. This indemnity obligation shall apply notwithstanding any negligent or intentional acts, errors or omissions of Provider, but the Customer's obligation to pay Losses shall be reduced in proportion to the percentage by which the Provider's negligent or intentional acts, errors or omissions caused the Losses. Notwithstanding the foregoing, the extent of the Customer's indemnification shall not exceed the Customer's liability for the negligent acts or omissions of its employees as governed by Massachusetts General Laws Chapter 258, nor shall anything herein be deemed to waive the protections and exemptions afforded the Customer therein. 12.03 Survival of Provisions. The provisions of this Article XII are in addition to and not in limitation of any other rights and remedies available to Customer or Provider and shall survive the expiration or termination of this Agreement. ARTICLE XIII. PURCHASE OPTION 13.01 Grant of Purchase Option. For and in consideration of the payments made by Customer under this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, Provider hereby grants Customer the right and option to purchase all of Provider's right, title and interest in and to the Systems on the terms set forth in this Agreement (the "Purchase Option"). The Purchase Option shall be exercisable on the 10th and 15th anniversary of the Commercial Operation Date, or upon expiration of the Term or expiration of any Extension Term (such date, the "Purchase Option JA0648300.1 1 38 Date"). To exercise the option Customer shall give advance written notice to the Provider during the Exercise Period (defined below) following a Final Determination (defined below). 13.02 Customer Request for Appraisal of Systems Value. Not earlier than 270 days, or later than one hundred and eighty (180) days, prior to the Purchase Option Date, provided Customer is not then in default, Customer shall have the right to provide a notice to Provider requiring a determination of the Fair Market Value of the Systems. Fair Market Value shall be determined pursuant to Section 13.03 and 13.04 by the Independent Appraiser. 13.03 Selection of Independent Appraiser. Within twenty (20) Business Days after receipt of a notice provided under Section 13.02,Customer and Provider shall mutually agree upon an Independent Appraiser. If Provider and Customer do not agree upon the appointment of an Independent Appraiser within twenty (20) Business Days, then at the end of such twenty (20) Business Day period, two proposed Independent Appraisers shall, within five (5) Business Days of each Party's notice, select a third Independent Appraiser (who may be one of the Independent Appraisers originally designated by the Parties or another Independent Appraiser) to perform the valuation and provide notice thereof to Provider and Customer. Such selection shall be final and binding on Provider and Customer absent fraud. 13.04 Determination of Purchase Price. The selected Independent Appraiser shall,within twenty (20) Business Days of appointment, make a determination of the Fair Market Value (the "Final Determination") which shall specify the "Final Appraised Value" of the Systems. Upon making such Final Determination, the selected Independent Appraiser shall provide such Final Determination to Provider and Customer, together with all supporting documentation that details the calculation of the Final Determination. Except in the case of fraud or manifest error, the Final Appraised Value of the selected Independent Appraiser shall be final and binding on the Parties. 13.05 Calculation of Purchase Price. The Purchase Price payable by Customer for the System shall be equal to the higher of the Customer Termination Payment or the Final Appraised Value as determined by the Independent Appraiser in its final determination. 13.06 Costs and Expenses of Independent Appraiser. Provider and Customer shall each be responsible for payment of one half of the costs and expenses of the Independent Appraiser. 13.07 Exercise of Purchase Option. Customer shall have ninety(90)Business Days from the date of the Final Determination (such period, the "Exercise Period") to exercise the Purchase Option, at the Purchase Price. At the commencement of the Exercise Period or as soon thereafter as practicable, Customer shall be entitled to inspect the Systems and all records related to the Systems, including warranties and records related to Environmental Attributes and Environmental Incentives, and to conduct all reasonable due diligence regarding the Systems. Customer must exercise its Purchase Option during the Exercise Period by providing a notice (an "Exercise Notice") to Provider, and specifying a closing date for the purchase and sale of the Systems (the "Transfer Date"). Once Customer delivers its Exercise Notice to Provider, such Exercise Notice shall be irrevocable except due to fraud of Provider or fraud or manifest error of the Independent Appraiser; and unless Customer's legislative body fails to appropriate funds equal to the Purchase Price. JA0648300.1 1 39 13.08 Terms of Systems Purchase. On the Transfer Date (a) Provider shall surrender and transfer to Customer all of Provider's right, title and interest in and to the System, including Environmental Attributes and Environmental Incentives accruing after on or after the Transfer Date, and shall retain all liabilities arising from or related to the Systems Assets prior to the Transfer Date, (b) Customer shall pay the Purchase Price, by wire transfer and shall assume all liabilities arising from or related to the Systems Assets from and after the Transfer Date, and (c) both Parties shall (i) execute and deliver a bill of sale and assignment and assumption of contract rights containing no representations or warranties, except as to title, together with such other conveyance and transaction documents as are reasonably required to fully transfer and vest title to the Systems in Customer on an AS IS, WHERE IS basis, and(ii) deliver such other Commercially Reasonable ancillary documents, including releases,resolutions, certificates,third person consents and approvals and such similar documents as may be reasonably necessary to complete the sale of the Systems Assets to Customer and rights to Environmental Attributes and Environmental Incentives. Provider shall, at its expense, remove any and all liens, security interests, and other encumbrances placed on the System, including without limitation those placed by Provider, an Affiliate, or Lender, and shall assign to Customer all manufacturer or other similar warranties for the System. 13.09 Transfer Date. The closing of any sale of the System(the"Transfer Date')pursuant to this Section 13.09 will occur no later than thirty (30) days following appropriation by Customer's legislative body of funds equal to the Purchase Price,unless extended or shortened by agreement of the Parties. ARTICLE XIV. MISCELLANEOUS 14.01 Additional Documents. Upon the receipt of a written request from a Party,the other Party shall, at the cost and expense of the requesting Party, execute such additional reasonable documents, instruments, estoppels, consents, confirmations and assurances, and take such additional reasonable actions as are reasonably necessary to carry out the terms of this Agreement. No Party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this Section. 14.02 Expenses. Each Party hereto shall pay all expenses incurred by it in connection with its entering into the Agreement,including,without limitation,all attorneys'fees and expenses. 14.03 Integration; Attachments. This Agreement, together with the Schedules and any Exhibits attached hereto, including the Lease, constitutes the entire agreement and understanding between Provider and Customer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof. 14.04 Industry Standards. Except as otherwise set forth herein, for the purpose of this Agreement, accepted standards of performance within the solar photovoltaic power generation industry in the relevant market shall be the measure of whether a Party's performance is reasonable and timely.Unless expressly defined herein,words having well-known technical or trade meanings shall be so construed. JA0648300.1 1 40 14.05 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Provider and Customer. 14.06 Waiver. No waiver of any provision of this Agreement shall be effective unless set forth in writing signed by the Party granting such waiver, and any such waiver shall be effective only to the extent it is set forth in such writing. The failure of Provider or Customer to enforce any of the provisions of this Agreement, or the waiver thereof, shall not be construed as a general waiver or relinquishment on its part of any such provision in any other instance, or of any other provision in any instance. No single or partial exercise of any right under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right; and no waiver of any breach of or default under any provision of this Agreement shall constitute or be construed as a waiver of any subsequent breach of or default under that or any other provision of this Agreement. 14.07 Survival. The obligations hereunder that, by their sense and context, are intended to survive termination of this Agreement shall survive the expiration or termination of this Agreement to the extent necessary to give them full effect,including,but not limited to,the Parties' indemnification obligations, Provider's obligation to pay all Governmental Charges under Section 5.04 and Provider's removal obligation under 6.03 and 6.04. 14.08 Governing Law; Jurisdiction; Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to any choice of law principles. Any legal action or proceeding with respect to or arising out of this Agreement shall be brought in or removed to any court of the Commonwealth sitting in Middlesex County or the federal district court sitting in the Commonwealth. By execution and delivery of this Agreement, Provider and Customer accept, generally and unconditionally, the jurisdiction of the aforesaid court.Provider and Customer hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Agreement brought before the foregoing courts on the basis of forum nonconveniens. Provider agrees that service of process may be effected upon it by certified mail or federal express,with proof of receipt, at the address provided in Section 14.17 (Notices). 14.09 Severability. Subject to the other terms of this Agreement: Any term, covenant or condition in this Agreement that to any extent is invalid or unenforceable in any respect in any jurisdiction shall, as to such jurisdiction, be ineffective and severable from the rest of this Agreement to the extent of such invalidity or prohibition, without impairing or affecting in any way the validity of any other provision of this Agreement, or of such provision in other jurisdictions. The Parties shall use good faith efforts to negotiate to replace any provision that is ineffective by operation of this Section with an effective provision that as closely as possible corresponds to the spirit and purpose of such ineffective provision. -F,I 14.10 Headings. The-I ne headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement. 14.11 Relation of the Parties. The relationship between Provider and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any JA0648300.1 1 41 purposes, including federal income tax purposes. Provider and Customer, in performing any of their obligations hereunder, shall be independent contractors or independent parties and shall discharge their contractual obligations at their own risk. 14.12 Joint Work Product. This Agreement shall be considered the work product of both Parties hereto, and, therefore, no rule of strict construction shall be applied against either Party. 14.13 Injunctive Relief. The Parties acknowledge that a violation or breach of the provisions of this Agreement may result in irreparable injury to a Party for which a remedy at law may be inadequate. In addition to any relief at law that may be available to a non-breaching Party for such a violation or breach, and regardless of any other provision contained in this Agreement, such Party shall be entitled to seek injunctive and other equitable relief and shall not be required to post any bond in connection therewith. 14.14 No Third-Party Beneficiaries.This Agreement is solely for the benefit of the Parties and their respective permitted successors and permitted assigns, and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any remedy, claim, liability, reimbursement, cause of action or other right. 14.15 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which constitute but one agreement. Any counterpart may be delivered by facsimile transmission or by electronic communication in portable document format(.pdf) or tagged image format(.tif), and the Parties agree that their electronically transmitted signatures shall have the same effect as manually transmitted signatures. 14.16 No Public Utility. Nothing contained in this Agreement shall be construed as an intent by Provider to dedicate its property to public use or subject itself to regulation as a public utility, an electric utility, an investor owned utility, a municipal utility, generation company or a merchant power plant otherwise known as an exempt wholesale generator. 14.17 Nondiscrimination. Provider agrees that it shall not,because of race,color,national origin, ancestry, age, sex, religion, physical or mental handicap, or sexual orientation, gender identity, genetic information, or status as a veteran, discriminate against any qualified employee, applicant for employment, subcontractor, or person or firm seeking to provide goods or services to Provider, or deny any person access to the Property or to any activities or programs carried out upon the Property. Provider shall comply with all applicable federal and state statutes, rules, and regulations prohibiting discrimination in employment or public accommodation. 14.18 No Limitation of Regulatory Authority. The Parties acknowledge that nothing in this Agreement shall be deemed to be an agreement by Provider or Customer to issue or cause the issuance of any permit or approval, or to limit or otherwise affect the ability of the Customer, or the Commonwealth of Massachusetts to fulfill its regulatory mandate or execute its regulatory powers consistent with Applicable Legal Requirements. 14.19 Notices. Unless otherwise provided in this Agreement, all notices and communications concerning this Agreement shall be in writing and addressed to the other Party as follows: JA0648300.1 1 42 If to Provider: LLC c/o Ameresco, Inc. I I I Speen Street, Suite 410 Framingham, MA 01701 Attention: With a courtesy copy to: Same address as above, but with Attention: General Counsel If to Customer: Town Manager Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 Attention: Michael Cronin, Department of Public Facilities With a courtesy copy to: Kevin Batt, Esq. Jessica Wall, Esq. Anderson & Kreiger LLP 50 Milk Street Boston, MA 0210 kbatt@andersonkreiger.com j wall@andersonkreiger.com or at such other address as may be designated in writing to the other Party. Unless otherwise provided herein, any notice provided for in this Agreement shall be hand-delivered, or sent by (a) registered or certified U.S. Mail, postage prepaid, (b) commercial overnight delivery service, or (c) facsimile or email attachment, and shall be deemed delivered to the addressee or its office when received at the address for notice specified above when hand-delivered, or upon confirmation of sending when sent by facsimile or email(if sent during normal business hours or the next Business Day if sent at any other time),on the Business Day after being sent when sent by overnight delivery service (Saturdays, Sundays and legal holidays excluded), or five (5) Business Days after deposit in the mail when sent by U.S. Mail. Customer shall deliver to any Lender, concurrently with delivery thereof to Provider, a copy of each notice of Provider Default given by Customer under Section 8.01 of this Agreement, and no such notice shall be effective absent delivery to the Lender, provided that Customer shall not be required to deliver such a notice to more than one Lender or to more than one address at any given time, and provided further that such Lender is identified in this Agreement or in a writing signed by Provider and delivered to Customer in accordance with JA0648300.1 1 43 this Section 14.17. In the event more than one Lender or more than one address is identified by Provider, Customer shall be in compliance with the preceding sentence of this Section if it delivers a copy of the notice of Provider Default to any one such Lender and at any one such address,unless the notice to Customer identifying a Lender and address expressly states that such Lender and such address supersedes any prior Lender and address identified by Provider, in which event Customer shall deliver said notice to such Lender at such address. In the event of emergency, the Parties designate the following individuals as their respective points of contact to be available twenty-hour (24) hours per day, seven (7) days per week (either Party may change the individuals named below by providing written notice in accordance with the provisions of this section): Provider: [TO BE ADDED] Customer: Public Facilities Director Town of Lexington 201 Bedford Street Lexington, MA 02420 Telephone: 781-274-8958 (office); 781-698-6473 (cell) 14.20 Additional Qualifications. Notwithstanding anything to the contrary in this Agreement: (a) Customer shall not be required to execute documents or instruments, or take any actions or omit from taking any actions, subsequent to the execution of the Agreement which will materially or unreasonably increase Customer's risk or obligations under the Agreement, or result in the waiver of any of Customer's rights or remedies under the Agreement or at law or in equity, as reasonably determined by Customer. (b) Any requirement that Customer cooperate or assist Provider shall not require Customer to interfere with, or influence, the independent executive, regulatory, judicial, licensing,permitting,taxing or legislative functions of any department,board, committee, official, body or commission of Customer in its capacity as a municipality. (c) The Agreement shall be subject to Applicable Laws. (d) Customer does not waive any of the rights, remedies, defenses and immunities afforded Customer, as a municipality,under G.L. c. 258, all of which rights,remedies, defenses and immunities Customer hereby reserves. Furthermore, the Provider shall have no recourse whatsoever against City officials,boards, commissions, committees, advisors, designees, agents or its employees other than injunctive relief or declaratory relief, arising out of any provision or requirement of this Agreement or because of enforcement of this Agreement. JA0648300.1 1 44 (e) Nothing herein shall interfere with the duties of the City Assessor in the calculation, assessment and collection of any taxes. 14.21 M.G.L. c. 62C, § 49A Certification. The Provider hereby certifies under penalties of perjury that it has complied with all laws of the Commonwealth of Massachusetts relating to taxes, reporting of employees and contractors, and withholding and remitting of child support. 14.22 Disclosure of Beneficial Interests. Provider shall complete, sign and file the certification and disclosure required by G.L. c. 7C, s. 38, with respect to the Lease. [Signature pages follow.] JA0648300.1 1 45 IN WITNESS WHEREOF intending to be legally bound hereby, the Parties have executed this Solar Power and Storage Services Agreement as of the Effective Date. LLC By: Ameresco, Inc., its sole member CUSTOMER: James Malloy Lexington Town Manager Approved as to Form: Name: Title: Date: JA0648300.1 1 46 AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Approval of Schematic Design of Police Station PRESENTER: ITEM NUMBER: Mike Cronin, Director of Facilities I.5 SUMMARY: The Police Station design has continued to be refined by the PBC and Mark Corr, Police Chief has been meeting with them. This will be the third presentation this year on the project and the Department of Public Facilities is seeking to obtain the Board's approval on the schematic design so that the architect can move forward on the design process. Chief Corr and Mike Cronin as well as the architects will be available to respond to any questions the Board may have. In addition to the information previously provided, I've attached a planning document the architect provided for our review which contains guidelines for planning police stations. There are also some additional comments from the architect attached. The last file attached shows the deviation from the standard guidelines for police stations and the proposed Lexington Police Station. The last two documents are intended to respond to some of the questions the Board asked during the last presentation. SUGGESTED MOTION: Move to approve the schematic design as presented. FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 7:55 p.m. ATTACHMENTS: Description Type D Mvsen.tation. Gwer IMI[emo D police.f�I acilities(".."bidelin.es Co v etNI[el mo D Arcli.itects cornmentS (A.Wer Ullenio D Program Deviation. 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Pre-Plann'o'ng and Ainalys"M...................................................................................................l3 Identify and Secure Planning Funds............................................................................................l3 Establishthe Planning Team...........................................................................................................l4 Hiringen Architect..............................................................................................................................l6 Conduct a Space Needs Analysis.................................................................................................l8 ConductSite Evaluations................................................................................................................20 Develop Preliminary Project Budget..........................................................................................23 Obtain Approval to Proceed with the Project.........................................................................24 EvaluateFacility Options................................................................................................................24 Update Project Budget Costs........................................................................................................28 Obtain Final Approval and Secure Project Funding.............................................................30 Secure and Purchase Site................................................................................................................30 Phase III,., Project Deslgn and Del'i'very.............................................................................................31 Identify Project Delivery Method..................................................................................................31 Designthe Facility.............................................................................................................................32 Phase IV,., Project Construction & Occupancy...............................................................................36 Buildthe Facility.................................................................................................................................36 Move-In and Occupancy..................................................................................................................37 Consider Community Engagement Opportunities................................................................./1 Conclusion-------------------------------------------------.zU • • • • � i � II11iiilllll POLICE FACILITIES PLANNING GUIDELINES � "`IIIII O EVALUATE Facility Options Q BUILD Facility Q IDENTIFY Project Delivery Method QHIRE Construction Manager (if separate from hiring architect) DESIGN AND iili II�IiII�I��I�'Ih�'lllllllll�?I�IIIIIIIIIIIIIIi ................................................... Illi�� I�I O HIRE Architect to Design Facility Q DESIGN Facility Q SECURE and Purchase Site O MOVE-IN to Facility International Association of Chiefs of Police '- All law enforcement agencies need a headquarters or The Problem substation of some sort and will need to plan, design, and build a new or renovated facility in the future. The Most police facilities continue to operate well past their purpose of this document is to empower law enforcement planned lifespans. For many communities, funding for new executives pursuing a facility construction project to make police facilities is not available or remain at the bottom informed decisions and direct the project so that the of the community's long-term capital improvement building fits the agency's operational and cultural needs. plan. Changes in technology, current building code Often, agencies find that the opposite happens, and they requirements, security issues, as well as outdated must later adjust their operations and personnel needs to building systems, such as HVAC (heating, ventilation, match the facility's capacity and design. Since the useful and air-conditioning) and electrical, require significant life of a police facility can range from 20 to over 50 years, expenditures to update, and these improvements often a new facility project is typically a "first-time" experience lack funding. Making the community aware of these for most law enforcement executives. issues and developing a plan of action to fix them takes significant planning. A law enforcement executive's role in the process has a dramatic impact on the design, budget, use, and lifespan Focus of the Police Facility Planning Guidelines of a new facility. In the planning stages, the project team has the greatest opportunity to change or define This document provides law enforcement executives with a building philosophy, size, and design with the least planning model applicable to all types and sizes of facility impact on cost. It is critical to do this at the beginning projects, regardless of their complexity. The considerations stages as opportunities for change at later stages provided in this document are intended to promote a become more limited and more costly. Changes during successful project outcome, whether the jurisdiction is the construction stage are the most expensive and can constructing a multiuse facility, a police headquarters, seriously delay a project. Effective planning for a new or any one of several smaller projects, such as a precinct or renovated law enforcement facility is the most cost- facility or substation. effective step a jurisdiction can take to ensure a successful This document is designed principally for law enforcement project outcome. executives, as well as any other law enforcement Most law enforcement executives have little or no expertise representatives overseeing the project. It is designed to in the subject areas of design and construction; however, position police executives and their staff in a meaningful they do have a thorough understanding of how their role as they undertake this complex and important agencies need to operate to provide quality public safety project. It cannot be emphasized enough that the design services to their communities. This document is designed process requires a team effort including law enforcement, to help law enforcement executives make sound decisions government officials involved in finance and building by using a comprehensive planning approach. It will help requirements, and architects familiar with the specialized agencies design and construct a new facility or renovate design of public safety facilities. The goal of this document or expand an existing police facility. This document is to guide law enforcement executives through the facility incorporates the expertise of police chiefs, police facility planning process and alert them to specific design and project managers, and architects to identify the critical construction considerations. While design and construction project management steps involved in successful planning. issues are unique to each jurisdiction, core planning steps are essential to every jurisdiction. A we Getting Started:,,, Whein Your Department Identify and Docurnen't PIII ns with Needs a New or Renovated Fac i I ity the Current Fac II ity The following sections reflect key action items Well-designed police facilities enable staff to perform their recommended for successful project initiation. As each duties efficiently, effectively, and securely. As a facility ages, department and their respective communities are different, it may no longer meet the needs of an evolving department, there is no specific order in which the following steps are thus, negatively affecting morale, efficiency, safety, security, completed. For example, some jurisdictions may require technology, and overall delivery of police services. When community support to gain political support. In other these conditions occur, agencies search for alternatives. jurisdictions, political support for the project may be Typical remedies include expanding or renovating the required prior to completing an organizational assessment. existing facility, adaptively repurposing an existing non- Nonetheless, all sections within the four phases of this police facility, or building an entirely new facility. document should be considered when moving through this complex process. To outline the possible scope of a project accurately, it is necessary to document existing facility deficiencies. There Document Wistory and RHior Uses of are two types of deficiencies: operational and functional. Current Facility Operational deficiencies relate to the department's daily policing efforts, whereas functional deficiencies relate to The first step in establishing whether to build or renovate everything from security access to HVAC equipment and a facility is documenting the usage of the current facility. building code issues. A macro-level approach should be A comprehensive approach to current facility objectives utilized when investigating the operational and functional may require an examination of past uses of the current deficiencies of the facility. facility. Documentation should contain historical details of the structure as well as the various functions and uses Operational Deficiencies. Officers and staff already know of the building. This process can enable the numerous what the operational issues and challenges are, so it is stakeholders involved to gain perspective of the good to begin by involving them. Staff are encouraged to objectives, proposals, relevance, and needs for the new or participate during this information collection phase, and updated facility. discussions with each department within the agency will be helpful. The following are some questions to consider: Consider documenting the following: 0 Are there proper security separations between the • Legal owner(s) of the facility and any deed operational areas and the public? restrictions 0 Are there cameras observing critical areas, such as • Prior waivers from existing regulations the sally port, front desk, and evidence processing? • Construction standards and building codes in place 0 What services does the public need that the current at the time of construction facility cannot accommodate? • Staffing data 0 How does the proposed project align with the • Administrative spaces and usage jurisdiction's overall strategic business plan and service goals? Meeting spaces and usage What does a department need to make community- Training spaces and usage oriented policing efforts work better with Community spaces and usage the community? Are operational standards or best practices of the department compromised through the use of the current facility? Asso6i f Chiefs of milli Functional Deficiencies. Once again, the department's During the deficiency assessment, it is also important to officers and staff already know what does not work with identify public needs and conduct tours of other police current building systems, even if they do not know the facilities. Doing so can provide insight on solutions to causes. During the deficiency assessment, the following existing problems and prevent future problems in the new actions are vital: or renovated facility. • Collect reliable and accurate data on all facility Focus on what the public needs: deficiencies (a recent building or code compliance assessment audit is a good place to start). 0 Location of the facility • Involve facilities and/or maintenance staff. They will 0 Clearly marked public parking be most aware of the condition and operational issues 0 Easily identifiable and accessible entrance with the facility's equipment. 0 Visitor-friendly design that incorporates safety • Take photos and videos of the facility to showcase as a priority the impact of the building deficiencies in future 0 Comfortable waiting area conversations or presentations. • Ask such relevant questions as the following: 0 One-stop shopping concept for police services 0 Easy pick up of property * What current facility deficiencies prevent officers from completing their tasks efficiently 0 Community Center/community meeting rooms and effectively? 0 Safe-swap zones for parental custody exchanges, craigslist swaps, and so forth. * Are there proper ventilation systems for evidence and prisoner holding areas? Tour other police facilities: * Have customer, civilian employee, and officer 0 Observe the overall layout (exterior and interior). surveys been completed to document needs and perceptions of facility issues? 0 Observe workflow. 0 Is the building itself a hazard? Does this building 0 Observe interestin g desi gn features that meet, or can it be made to conform in a cost- improve efficiency. effective way, to state or local "essential facility" 0 Question why things are designed the way structural building codes? they are. • Elicit staff participation at all levels within the 0 Take note of the security demarcations between department to identify problems. public and staff areas. • Gain as many perspectives as possible to assist 0 Observe the different finishes throughout the in identifying deficiencies during the preliminary facility (floors, walls, doors, etc.). How are they are assessment of deficiencies phase. This might performing for daily use, as well as long term? include facility customers such as city, county, 0 Ask how evidence, reports, and arrestees and state agency partners, city officials, and are processed. community members. 0 Ask how visitors are assisted. 0 Ask how the security systems are performing, what platform is being used and the ease of operation, etc. 0 Ask what does and doesn't work within the facility design. What could work better? 0 Ask if there were any unanticipated workflow problems or procedural changes caused by certain maintenance/layout choices. Note the lessons learned from good and bad It has been said that "you are what you celebrate." It is design features. Document these issues with rare to have the opportunity to chart a new course as photography for later use. monumental as is the opportunity to design and build an entire space for a department and the community. To All information must be formatted and eventually blended i accomplish this, identify what type of philosophy guides into a formal document for broad distribution to staff, community board members, citizens, and others. operations. The law enforcement executive must clarify the mission, philosophy, and goals of the department. An existing deficiency analysis can be performed by (1) an These principles should be the driving factor in all facility experienced consultant or architect or (2) in-house staff, if planning, design, and construction decisions. The absence the department has facility planning expertise. Whomever of attention to goals and philosophy leads to a facility that is selected will need to work closely with the police does not reflect the department's true mission. project manager (PPM) to ensure good communication Once initiated, facility planning projects often move and oversight. Identifying a dedicated PPM to coordinate ahead too quickly or underestimate the time needed to and manage all aspects of this project is important. More undertake a comprehensive functional and/or space needs information on selecting the right PPM is detailed in Phase analysis. In particular, an essential step—documenting the 11, during the Establish the Planning Team section. There philosophy and mission statement of the organization— are times when a department might not have the resources is often overlooked. The mission, goals, objectives, and to devote a full-time or even part-time representative to programmatic needs of an organization should dictate the a multiyear construction project. In those cases, consider design of its facility. dividing the responsibilities across a dedicated planning team or requesting a project manager in the architect or Most 21st-century police agencies have a written policing consultant request for proposal (RFP). philosophy in place. The planning team must fully comprehend and document the agency's governing Depending on the size of the agency or project, it may principles to ensure that the new facility reflects them. be helpful to utilize a trained and experienced consultant Mission statements regarding the operational philosophy or architect for this stage. If an architect or consultant i of an agency must drive, rather than be defined by, the s to be hired, a simplified request for proposal (RFP) c physical layout of the building. Balancing secure internal an be utilized to solicit a qualified professional. More space and publicly accessible space, for example, requires information on requests for proposals is available in Phase an understanding of the mission of the department. 11 of this document. Any in-house staff selection should If an agency is determined to increase contact and be based upon expertise, skill and commitment. For more collaboration with the community within a community information on selecting an architect and the RFP process, policing framework, the building must be designed to please refer to Phase 11. Note that the process of hiring an make visitors feel welcome. A balance between secure architect may take place more than once throughout the internal and public spaces must be achieved in each project. An agency may choose to hire one architect or facility project. firm to conduct their deficiency analysis and space needs assessment, and another to complete the actual facility Community policing today is much more than providing design and construction. a community room accessible to the public. Community policing has grown dramatically to include having Document Policing Philosophy other local and state agencies, both non-governmental organizations (NGOs) and law enforcement, imbedded mm within the facility. Providing NGOs space within the building enhances the collaboration between the police department and the community and social service organizations. Agencies are even incorporating "Fusion Centers" into facilities, which are 24/7 spaces where officers and NGO staff collaborate on community issues. 7,77 Association of Chiefs of Police A philosophy is shaped by many things, but it is nothing Complete an Organi4ational Assessment more than words if not reinforced by organizational norms and a culture that are lived through the prism of It is critical to ensure that the facility design meets the that philosophy every day. Today, there are a multitude of department's operational, cultural, and philosophical advanced policing philosophies, for example, needs. Once goals are established, it is easier to forecast potential agency needs. Space needs should be tailored to • problem-oriented policing, meet the current and anticipated needs of the department • intelligence-led policing, and and community. In order to do this, the facility must be • evidence-based policing. planned, designed, and constructed to accommodate how the department will operate and function during the These philosophies are not mutually exclusive. Identifying facility's lifespan. To minimize changes later in the process, how these philosophies should be incorporated into or dissatisfaction with inadequate space following the the organization moving forward is key. Once the construction, any major changes to the department's philosophy and vision have been identified, they must be policing philosophy, personnel needs, operations, or other communicated and embodied by incorporating them into organizational assets and priorities should be assessed every aspect of the organization. Philosophy and vision prior to the budget and design phases of the facility become cultural norms in an organization over time, and project. This assessment should take place ahead of to create cultural norms, the philosophy and vision of the discussions regarding the new or updated facility to limit agency and community must be a central guiding tenet in bias and ensure that operations influence design rather everything the department does. than the other way around. Identifying the department's philosophy will help craft Take time to review operations, processes, practices, and the workspaces. Each part of the organization, and by any aspects of the agency that the facility will impact or extension the facility, should organically reinforce the be impacted by. Consider the following questions: overall mission. 0 What is the current population and staffing ratio for the police department? Example 1: In order to emphasize the 0 What is the potential growth and buildout for the importance of officer learning and development, community and how does this impact the staffing ratio proper space needs should be allotted for a for the police department? learning environment that is both comfortable 0 Will operations function the same way in a new facility? and convenient. Teaching officers a new 0 How can the new facility eliminate redundancy and approach to policing requires time and visual representations of different perspectives. improve operations? 0 How much storage is needed for • equipment, • evidence, and Example 2: In order to emphasize problem- 0 documents. (And how much storage can be saved oriented and community policing, of which a key potentially with a paperless document storage plan principle is citizen engagement, a facility should moving forward?) offer space to accommodate the community. The facility might offer a room available for use 0 Are there areas of the organization that can be altered by local community groups, and the agency and reengineered to both save money and improve might provide liaisons to facilitate the meetings. services? Providing space, and monitoring how it is used, 0 Are there national or local trends (legislative or would become a visual reinforcement of the cultural) that will impact personnel and space needs? department's philosophy. 0 What partners do you work with and in what capacity? For example, 0 Do the state police handle evidence processing? 19 Are there plans to regionalize dispatch (or other special services) with nearby communities? • Is the agency accredited or planning to become accredited in the future? If not accredited, what changes might be required to meet state or federal standards—and how might those changes impact space, personnel, and operational needs? • How will the agency function 10 years from now? • What potential personnel needs will there be 10 years A common mistake is to assume that if the town's from now? governing body holds a "public hearing" or "public meeting," that the stakeholders and constituents will These are only a few areas to explore when assessing the attend to hear the project proposal. This is unlikely given organization and identifying potential changes to policies various time commitments, obligations, and distractions and practices that will impact facility needs. Whether any facing community members. It is important to seek changes are planned or not, the time to do so would be out opportunities to engage with core constituencies during this phase, and not after the design or construction to discuss the proposal with them, much like any other phases are complete. police services or operations that impact the community. It should also be noted that the first time the department It is important that this assessment takes place engages with these groups should not be when proposing independent of the facility renovation or construction. To avoid unintentionally creating processes that a multimillion-dollar project that the department is hoping they will approve or fund. Align portions of the agenda and fit the desired facility design and components the proposal to support theirs. organizational assessment should be completed prior to any conversations surrounding the facility planning and Before proposing the project to core constituencies to design process. gain their buy-in, identify core constituencies and engage with them first to understand and help them further their Secure Key Stakeholder Support for unique agendas in the community. the Project Most agencies will need community support during the Establish Community Support initial planning of their new building. Engaging these Stakeholder support is critical to the support and success groups at least a year in advance will help strengthen the of the project. However, requesting funds for a major facility plan and perhaps inform initial facility planning project does not happen easily or without a coordinated and design. and strategic plan to garner support. Stakeholder support, whether in developing support for a public safety facility Example 1: A local community group's focus is or additional employees is built brick by brick. How is that in keeping the town clean and free from litter. done? First, identify core constituencies in the community, Meet with the group and identify how they can such as a Parent-Teacher Association or other local activist track areas of high littering and develop a plan group. While each community is different, and will have to counter this using their intelligence. Not only different core constituencies, it is critical that all law will the department further the group's agenda, enforcement leaders embarking on a facility renovation or but this will help them realize that their quality construction project identify these prominent individuals of life is also a police priority. The new/renovated and groups early on and elicit their support for the project. facility may be more sustainable—potentially Key stakeholders in the community may greatly impact LEED certified—to further support their agenda the funding and approvals for the project, and it is the of a clean environment and community. planning team's responsibility to develop an action plan for working with these core constituencies. Association of Chiefs of Police • project is in the best interest of the entire organization. A Example 2: A local Parent-Teacher Association critical step here is to prove that the project aligns with the group meets regularly. Attend their meeting to jurisdiction's overall strategic plan and service goals. discuss community priorities relating to youth, school bus routes, sex offender issues, and school security. The new/renovated facility may provide space for their meetings, which would ensure a police liaison could attend to speak to security concerns and improvements. Example 3: A community might have a local Council on Aging, which promotes care and awareness for elderly residents. Meet with the group to discuss opportunities to reduce their Think of the team as representing the entire community. likelihood of being victimized, and how the Invite other department heads, such as building officials, police department can aid them during medical planning directors and economic development staff calls. The new/renovated facility may have space to planning workshops. Gain support from other city to accommodate critical response teams that organizations and governing bodies. Make it clear that address elderly issues. the police department has a stake in, and impact on, the quality of life in the community. The image of a mmd police facility must be seen as synonymous with the Establish Political Support government's image and of the community it represents. Internal agency, governing body, and community support Techniques for Establishing Support are all critical for a police facility project to move forward. Existing facility deficiencies must be presented Gaining governing body and community support for a to all stakeholders in a logical format with complete capital funded project is crucial. The level of success of a understanding of the proposed project. Identifying and public project can be measured by the support it receives conveying the deficiencies of a current facility can be from the governing body, other public agencies, citizens, relatively easy. However, convincing executive and political business leaders and associations. External organizations decision-makers of the need to move forward with a can offer their support in a variety of ways. They can project that will require considerable amounts of time, support a project by advocating for it on social media, planning, and funding is far more difficult. Government commenting on it in newsletters, or speaking about it executives and decision makers have political motivations, at meetings. Business improvement organizations (BIO) challenges and problems associated with capital projects, groups such as the Rotary, Lions, Elks or Kiwanis Club, competing funding needs, and internal infrastructure goals. and local philanthropic and civic groups, are excellent In an ever-changing political environment, considerations sources of support. Organizations may also wish to to accommodate and facilitate varying levels of sponsor furnishings for a particular room within a newly understanding and interest in the project must remain proposed facility, such as a child victim interview room, a consideration. police museum, or local community room. Within some It is important to involve other intra-municipal departments municipalities, private corporations have donated their in planning and supporting the project. It takes special products or furnishings to offset project costs. effort to educate and encourage participation in a positive The ultimate goal is to gain as much support as possible way. Bring other organizational representatives into the from all city departments, staff, core constituencies, process to solicit their input and ideas. Gaining the support taxpayers, private corporations, and the press. The larger of other department heads can occasionally be the turning the support base, the higher the probability for project point for convincing the executive decision maker that a funding. High-level strategies are usually developed by an 0 Actively use social media platforms, television executive decision-making team, which in most municipal coverage, and local media outlets to publicize current government cases, would include a city manager, law facility problems and inadequacies (overcrowding, lack enforcement executive, director of public works, planning of detention space, lack of community space). director and director of finance. The process may also 0 Offer tours to educate participants on facility include input from elected as well as appointed officials deficiencies (space, operations, security, and the chambers of commerce. infrastructure). 0 Emphasize positive aspects of possible Example 1: In California, a woman placed the joint-use benefits. Santa Ana Police Department's canine section 0 Focus on life cycle cost benefits of a facility with in her will so that her estate funded their new multipurpose uses. facility canine kennels. 0 Emphasize the planning team's willingness to consider new ideas and recommendations from stakeholders. 0 Emphasize community service center concept Example 2: In Chandler, Arizona, etching the and how it can improve the quality of life for names of project sponsors in the entry pavers community members. helped to fund an officer memorial. 0 Attempt to close any gaps between perceptions of the project (highlight "needs" versus "wants"). 0 Promote the facility as a crucial and useful tool to Marketing a law enforcement project should be carefully facilitate community-oriented policing. considered. Consider utilizing a large-scale social media Provide "bench ma rki ng" comparisons with surrounding campaign to garner support and involve the community agencies to identify size and amenities for facilities of and other stakeholders. Support for the project will often similarly sized agencies and populations (to include arise out of a sentiment that the facility betters the quality current costs and costs adjusted for inflation). of life for the community, in addition to surmounting the Educate the public on current construction climates agency's current facility deficiencies. and the risk of cost escalation should the project be Educating specific public and private organizations, core significantly delayed. constituencies, and governing body officials can take many Educate the public on key differentiators in cost forms and should involve the various appropriate contacts increases for a police facility as compared to a and liaisons within the department. Usually, executive commercial building (security, ballistic protection, management such as a city manager or law enforcement evidence/property processing environments, storm executive will handle these high-profile meetings and shelters, redundant building systems, holding public relations events, in addition to the selected areas, etc.). design team. However, consider involving members of Create a "cheat sheet" for council members and the the department who have positive relationships in the governing body—so they can more easily respond to community. Ensure they understand the project and are constituent questions when the project is challenged. able to carry the message and advocate for the project Publish the report of the building deficiencies and whenever possible. disseminate it to the public. To assist in this educational process, consider Last, do any further needed research. The community the following: and governing body will both want to know specifics Utilize a marketing approach to generate buy-in from about the project that are not determined or final yet— department staff, community, and governing body. for example, the overall expected cost. Be aware of the Present at community-oriented policing meetings and different methods through which the project can be other public forums. funded and have recommendations ready based on the resources available. sso ion of Chiefs of e Obtain Preli'miMary Approval for the Project Depending on applicable state statutes, local rules, procedures, and more, the facility project may begin to receive formal or informal feedback regarding project presentations from governing body members, municipality executives, project stakeholders, and community members. This feedback will help to gauge current support for the overall facility project. It is hoped that by this stage, the planning team will have received initial feedback that indicates approval for and permission to investigate overall project costs, long and short-term financial obligations, revenue and grant sources, all well as all other fiduciary considerations to bring the facility project to fruition. P P� IF ilitu I li in IIIIP a A 0 A D A At Ident ify and Secure Plann ing Funds 0 Clarify that front-end planning costs can result in decreased maintenance costs and later The law enforcement executive should seek a reasonable renovation costs. level of initial planning funds from the governing body to initiate a more comprehensive facility needs assessment. 0 Front-end planning can expedite the project by Planning funds ensure that the groundwork for all future providing project justification. facility design work is reliable and derives from data 0 Time the request to coincide with the governing gathered during the analyses. In order to do so, it is body's yearly budget cycle or long-range capital important that the law enforcement executive identify improvements plan. and understand relevant budget approval process(es) 0 Base consultant fees on scope of work and what is and timelines. Understanding this timeline will help the needed from the consultant. planning team set milestones and decision points to prevent funding delays. 0 Obtain planning expenditure approval. Once facility deficiencies are documented and governing body support for the project is forthcoming, securing sufficient funds to conduct a comprehensive facility planning study becomes necessary. Planning costs will vary based on facility and department size and complexity. This expenditure, which may seem large to the governing body at the time of request, is the most valuable investment that can be made in the project. Planning funds represent the least amount of money that will be spent on the overall project while offering the most potential to ensure a successful project. At this stage the department should obtain planning funds to • confirm the commitment of the jurisdiction to a new facility project, • allow the department to begin to expand the project team (use of consultants), and During this stage, it is important to understand the primary • travel to model sites, as needed. funding sources of facility projects. It is rare that projects are paid for in cash, so generally, funding comes from Requests for up-front planning funds are supported by the documentation of the department's policing philosophy 1. local government's operating funds; and current facility deficiencies. The request can be based 2. local government's Capital Improvement Funds; or on the cost experiences of similar, regional departments 3. through bonds, depending on the assets of who have already planned and designed a new facility, or the community. by an architect that has provided similar services. Every community has a "bond rating." Bond ratings are Consider the following issues when making the request to important in determining the lending community's annual the governing body for planning funds: interest rates. Once such a bond is issued, it is important to Examine jurisdictional funding constraints calculate when it will best be used for revenue. Bonds can and priorities. be used only for the particular reason they are originally raised and must be used within a certain time frame from A& 0 0 0 a 0 a a 11 issuance. In other words, if a bond is obtained to build Establish the Planniing 1 17e a m a facility, the planning team cannot place the bond into the town's "bank" and then purposefully wait 20 years Before moving to the initial planning steps (site analysis, accruing interest at a higher rate than is owed. This is a space needs analysis, and preliminary cost estimates), practice known as "bond arbitrage." identify, select, and put in place a planning team to oversee the hiring of an experienced architectural firm or Any use of bonds should be implemented and consultant with specific law enforcement facility planning communicated strategically. For example, one community and design experience. The planning team is created after might borrow a portion of the whole expected debt at the the governing body has given consent to move ahead with beginning, and once the end date is within the statutorily facility planning and provided sufficient initial planning allowed time frame and while interest rates were low, they funds to do so. Creation of this team offers an opportunity might borrow the remaining. It is important to seize on to bring all stakeholders together and create a working low interest rates when a community can borrow such relationship focused on the same goals. an amount. The planning team provides the avenue through which Understanding the bond process early in the project all major planning, design, and construction decisions are initiation can help greatly in facilitating support for the made. The membership requires diversity and it influences project. Questions about project financing will arise often the community buy-in and overall success of the project. and from all key stakeholders. Having the ability to forecast The task of managing consultants and making decisions on the possible payment methods for a long-term project— complex issues falls to this group. and developing a recommended path forward—will assist in both planning and securing support. Selecting a Police Department Representative for A brief overview of the bond process is as follows: the Planning Team (Police Project Manager) 1. Work with the Treasurer or Finance Department A police department project representative will be to determine if there is an ability to borrow for the important during the entire project and may be either a project. This means identifying if the community has police executive (usually the case with smaller agencies) the statutory authority both federally and locally or a designee, such as a commander, captain, lieutenant, to raise and appropriate such debt and to pay civilian manager, or facility manager. Occasionally two back lenders. may share the role, with a designee handling most of the tangible work and a chief managing the more sensitive, 2. There are typically two types of bonds: political aspects of the project, such as the concerns of a. General Obligation citizens and council members. b. Revenue Bonds If a police executive elects to utilize a designee as the 3. Identify a competent Financial advisor to work on the department's representative, selection should be based on bond project. Often, communities already have such an expertise, skills, and commitment. A background in project expert on staff, or they might work with attorneys who management, facility planning, and construction will be act as a "bond counsel." helpful. A genuine interest in learning and managing all aspects of a project, as well as being accountable for a a. The financial advisor will eventually facilitate the project's success or failure, are strong selection criteria. procurement and create the "offer statement" for The stronger the personal commitment, the better a bond. the project. b. A separate bond counsel will then be used to A successful PPM should do the following: review all documents for compliance. 4. Determine how and when it will be paid back. Plan to stay with the project from pre-planning to move-in. Always know what is going on relative to the entire project. Attend all group meetings. 0 Afth AM 0 • Select and convene a planning team. Don't assume to know everything about the • Sit in on all transition task force meetings to ensure department's needs. Request feedback from necessary work is completed within set timelines. employees throughout the agency. Many architects utilize questionnaires that are filled out by staff as Coordinate and schedule activities. part of the pre-design process. This will begin the Be capable of delegating assignments. buy-in process. Serve as a single point of contact and spokesperson Don't develop tunnel vision. Focus on the big picture. for the department. Share and document what is learned so others can Document the results of each planning session. learn from mistakes and successes. Be a good listener and have a positive attitude. Build consensus among community agencies, members Additional Planning Team Members of the department, partners, planning committees Additional members of the planning team may include and others. sworn and civilian managers and/or employees, each Ideally have some previous project design and/or representing a particular technical or operational point construction exposure; some agencies/cities enlist the of view. This is especially necessary during design services of an owner's representative (Owner's Rep.) development and the later parts of construction. Other with prior experience. team members may include police front-line officers with special skills or an interest in architectural or construction Early selection of a dedicated and qualified PPM and projects. The duties of these members, as well as the size project team is essential. Staffing and assignments can of the team, can vary as the project evolves. vary throughout a project—but commitment to common goals and teamwork are vital. And consistency across Part-time membership may include organization the team throughout the project can greatly increase the representatives, such as the Purchasing Department chance of success. It is very important to have consistency who may be brought in during the acquisition process, in terms of leadership and project commitment, project a technology professional and IT staff member who can history, philosophy, police standards, established speak to current and future technology needs, a building relationships, and knowledge of the project. maintenance representative to identify any city or agency "standards" and offer insight on the facility's mechanical Tips for the Agency Representatives systems and interior finishes, a fire marshal to speak to jurisdictional codes, or public works staff who specialize • The more planning up front, the fewer problems at in off-site work or underground utility information. Ad the end. hoc groups may be added to the planning team at various • Don't assume architects or consultants know the times to provide additional information. Community department's needs. Get involved and work as a team! members with specific expertise and interest may also Don't let them work in a vacuum. be on the planning team as necessary. Project architects • Ask questions, expect answers. and consultants, if brought on at this stage, should be considered an extension of this team. • Don't expect to learn how to read drawings or understand all of the specifications. Rather, utilize A Note on Public Works: New construction, adaptive other municipal staff such as the Building Official re-use, large expansion, and extensive renovation of to review the design documents. Make sure to get police facilities typically are assigned to a public works satisfactory answers to questions on how the various or facilities department once they become formalized spaces will function. and recognized as capital projects. Public works projects Attend the IACP Planning, Designing, and Constructing are usually supported by a public works agency project Police Facilities Course. director and/or capital projects team. If the department of public works develops a project team and appoints a Form transition teams as soon as possible. project director, the PPM must play a major role on this Think proactively, not reactively. team, while at the same time continuing to head up the police-specific planning team. In these cases, the planning ,a 0 0 a 0 0 a 1111 team becomes a vital technical user/subcommittee of to make decisions and involve other members from within the public works team. If the project becomes headed by and outside of the team. public works, or facilities, then this subcommittee will relay their input through the PPM. Role of Architectural Consultants on the Whether the planning team is public works or police- Planning Team based, the formal organization of a project team needs Qualified architects and consultants experienced in design to be clear so that everyone is aware of the existing and and construction of law enforcement and public safety agreed-upon structure. Public works departments and facilities play a key role on the planning team. Typically, their structures already exist within most municipalities. they take the lead in However, if the planning team remains police-based, determining a clear governance structure and decision- 1. conducting a site feasibility study, making process for the team are critical to clarifying 2. completing a formalized space needs analysis, and roles and authority. While major decisions affecting 3. developing preliminary budgets for the project. project approval, funding sources, and architectural or construction contract award are usually reserved for the References of qualified architectural firms or consultants organization's executive decision makers and/or elected can usually be gathered from online searches and/or officials, most cities, counties, and states have laws police departments who have recently gone through the pertaining to the awarding of contracts and use of public building process. Attending law enforcement conferences funds that establish a set process to follow. Again, each and trainings, such as the IACP Planning, Designing, and project varies, but this needs to be discussed up-front so Constructing Police Facilities training, is another way to all team members understand and agree to the process identify architects specializing in the design of public and their responsibility to make certain decisions, whether safety buildings. they relate to design, budget, location, furnishings, public relations, selection of architects, contractors and H i r ing an Architect consultants, or acceptance of product submittals. Most government organizations utilize a request for Other items the planning team should consider include proposal (RFP) or a request for qualifications (RFQ) process to engage an architect. Each process has • developing a consistent consensus and similarities to the other; however, each has its own decision-making process, particular strengths and should be considered depending • ensuring this group directs the project from start upon the project being proposed. It is important to note to finish, that at this stage, consultant selection may be only for the • ensuring consistency across team and in team initial space needs analysis and site evaluations. The major decision-making/messaging, difference is that an RFP will ask for qualifications and a fee while an RFQ will request a firm's qualifications. • utilizing one spokesperson, and • maintaining a consistent procedure with all partners. Selection of the architectural team to design the new facility may or may not be connected to the selection of Project management is the key to any project, especially the architect or consultant chosen previously to produce one as vital, detailed, costly, and politically sensitive as a space needs analysis, select a site, and develop an planning, designing and constructing a new police facility. initial project budget. Some jurisdictions make it clear Careful selection of a police planning team can mean the in the contract for the space needs analysis that the difference between project success and failure. Each team architect chosen will not participate in the actual design, member must understand and agree to the actual time with the intent of balancing biases. Other jurisdictions commitment involved. A three-to-five-year undertaking is find it best to contract with the planning phase architect normal. This could easily be extended depending on the or consultant for the purpose of project continuity and size and scope of the project. When finalizing the initial because the pre-design architect has already developed a planning team, be clear about the time commitment and good understanding of the department and its operations. work required of team members, as well as their authority Selection will be affected by the type of design and construction delivery approach chosen by the team. Note.-Each Jtirisdiction triust cor)firrn architects'acquisition with the organization's public works or capital projects protocol for "orofessional services YJ with their legal coutise/ department. Obtaining copies of comparable documents ar7d purchasir7g depart mer)ts. from local agencies that have recently built similar should ask to review the Selecting an architectural firm or consultant to conduct facilities is encouraged. A IDIDIVI initial document prior to its release, thereby ensuring the needs analyses is usually accomplished through an RF and viewpoints of the agency are clearly expressed. or an RFQ using a qualification-based selection (QBS) IDIDIVI These documents should include minimum qualifications writing and review process. It is important that the be highly involved during this process. As mentioned for proposals, such as prior size and scope of previous references, demonstrated previously, there are times when a department might police projects, former IDIDIVI comprehension of the applicable policing philosophy, etc. not have the resources to devote a full-time or even part-time representative to the project. When this is the A IDIDIVI should carefully read over all submitted information case, departments often hire a consultant or individual from architectural firms offering proposals on the project, to act as the "Owner's Rep." or a liaison between the contact their listed references, and visit sites designed police department and hired architecture firm or other by the firms, if possible. It is not uncommon to have relevant consultants. the highest-ranking firms present their proposals and credentials to the selection committee. This can enhance RFP - Request for Proposals: An RFID bases architect or the selection process. A IDIDIVI should be a major decision consultant selection upon a presentation of the proposed maker in the selection process to ensure department project's scope of services set forth by a particular firm, needs are represented and the quality, philosophy, and using a set of evaluation criteria and scoring sheets. It also personality of the architectural firm or consultant team outlines the firm J s qualifications to handle the particular meet the needs of the project. project. Fees are sealed and not opened until scoring is completed and firms are ranked. Fees are then considered Selecting the architectural firm to complete the project is as part of the final selection process weighed with ability, a complex task. Smaller local architects provide a level of experience, and other selection criteria. familiarity and comfort, as well as a history of completed RFQ - Request for Qualifications: An RFQ bases architect regional projects important to any client. Larger firms, or consultant selection uon the qualifications of a particularly those based in larger cities distant from the p particular firm to perform the required services, using a set client jurisdiction, may bring national expertise in the law enforcement design arena, but can also be entirely of evaluation criteria and scoring sheets. Once considered unknown to the client. Teams that blend local architectural properly qualified, selection can continue or proceed firms with nationally experienced police facility consultant directly into fee negotiation with the firm considered most architects are a promising option. qualified, (similar to the RFID process). The RFQ is generally based on the QBS processes established for federal For smaller projects, a local qualified architectural team procurement under the Brooks Act of 1972. may be sufficient. In cases where there is not a local firm experienced in police facility design, an experienced QBS - Qualification-Based Selection: A QBS bases consultant joining the local architect is recommended. architect or consultant selection upon the qualifications Occasionally, larger police projects will require the of a particular firm using a set of evaluation criteria recruitment of combination teams, such as a local, and scoring sheets. The emphasis is on matching the architectural firm developing a partnership or joint venture qualifications of firms to the police agency's needs, rather with a nationally experienced police facility specialist. than comparing one firm to another. Firms are rated by This will allow for a local presence, while offering the qualifications. Interviews are held with the top three or four experience of a larger architectural company. In any size firms, and a final rating is established. The agency will then proiect, it is important to hire an architectural team with negotiate a mutually agreeable fee with the highest rated J experience in designing similar law enforcement facilities. firm. If no agreement on fees can be reached, the agency would then negotiate with the second rated firm. The RFID or RFQ document is usually written, advertised, and released by the purchasing department in conjunction Key criteria to consider when selecting an architectural may submit uninformed proposals at lower amounts or team include offer discounted packages to conduct both the needs assessment and future design services. Be cautious of • recent experience with law enforcement these proposals and ensure the firm is qualified to design facility projects; a facility that meets the complex and technologically • experience of proposed project team members; advanced operational needs of the agency. • good listening and teamwork skills; Conduct a Space Needs Analysis • personal chemistry or comfort level; • flexibility and creativity; Conducting a formal space needs analysis is an important first step toward defining the scope of a facility project • solid, experienced organization with a good reputation; and developing accurate preliminary cost estimates. • preliminary plan for design process and Hiring an experienced architect or consultant familiar with possible alternatives; law enforcement needs is crucial to obtaining a detailed • size of firm and years in business (at least five years); analysis addressing current and projected space needs. • reference checks; and A formal space needs analysis is required for any project to • pending work on other projects (availability). move beyond a conceptual stage and into a more defined phase. A thorough space analysis must demonstrate the The techniques and approaches used by architectural inadequacies of a current situation and offer reliable teams will have a significant impact on the outcome of estimates of current and projected space requirements the project. The best technical skills are only as good based upon industry standards, policing trends, and client as the architect's ability to employ and articulate them. growth. An experienced police facilities architect can If an architectural team cannot establish rapport with a accurately gauge and assess where inefficiencies have client, they cannot effectively use their skills to serve that slowly crept into operations on an aging and inadequately client. The jurisdiction's selection team must ensure the sized and organized facility. Information gathered during department hires the best-suited architect. The selected the previously recommended organizational or operations architect must ensure a successful design that meets law assessment should guide the space needs analysis so enforcement agency needs. that space needs do not unnecessarily alter operational processes. Quality data collection must take into account As stated before, having current knowledge and the comments, requests, and needs of the department, experience in the design of law enforcement facilities is but take into account the likelihood of agencies to view an essential requirement of the architect or architectural the possibilities for the new facility "through the eyes of team selected. The law enforcement agency must carefully the old." The role of a qualified architect can be to shed assess architectural team qualifications to identify those light on operational improvements available through better teams with the most relevant experience. facility organization and concepts. Selection of the architect will mirror the RFP or RFQ formats. Once the selection is official and an architect Utilization of Space Standards is hired, the agency's representative will merge the One area that affects all space needs analyses is the architectural team into the planning team as soon as determination of square footage allocation per occupant, possible through a series of meetings and discussions. certain rooms, offices, workstations, and so forth. These Whichever competitive selection process is chosen, the sizes can vary with each project as demographics, jurisdiction should take great care to evaluate competing organizational philosophies, functional needs, and other firms on their knowledge, skills, and abilities and then issues impact each agency's needs. While there are some develop a short list of potential firms. minimum standards set by law and/or accreditation If an RFP or RFQ process is mandated by law or through agencies as to jail and holding cell sizes (state boards of jurisdiction preference, the agency should keep in corrections and state court requirements) and circulation mind that selection focusing on a low bid might not be area standards (Americans with Disabilities Act and required and can be of concern. Firms lacking expertise fire codes), there are no absolute standards for offices, • 0 Ift Ift 0 a Ift workstations, or locker sizes. Each individual agency 0 Assess compliance with Americans with Disabilities Act must examine its own needs while keeping in mind the (ADA) criteria. standards utilized throughout other governmental offices 0 Evaluate technological systems. and law enforcement facilities. 0 Evaluate structural systems. Once established, office and workstation square footage 0 Evaluate HVAC systems. standards will be used as a basis for space allocation during the facility assessment planning process. Other 0 Evaluate plumbing system and fire protection. areas, such as roll call or briefing rooms, lunchrooms, and 0 Evaluate electrical and telecommunications systems. conference rooms, may be determined by room occupancy 0 Assess environmental deficiencies. needs and growth factors. 0 Conduct walk-through of current facility. Preparing for the Space Needs Analysis Future Trends Agency Background Conducting a space needs analysis requires an The following information is critical and must be understanding of future policing trends, as well as specific shared with the architect/consultant to ensure an department needs and preferences. The architect or accurate analysis. consultant must do the following: • Policing philosophy Examine future trends and needs such as • Organizational hierarchy and organizational chart 0 legal changes that mandate adult and juvenile • Current and future department goals arrestee/inmate space needs, additional evidence storage capacities, space for mandated officer • Jurisdictional strategic plan (mission, goals, objectives) training, etc.; • Current and future staffing projections 0 planned department growth; and • Department history 0 impact of grant-financed programs, task forces, • Key personnel to be interviewed and regional enforcement groups. • Arrests and calls-for-service data Identify preliminary adjacency requirements for each • Prevalent types of crime within the jurisdiction section and department. • Data collected from a client facility needs 0 Identify current, future, and potential shared uses, such questionnaire as custodial exchange, public safety use, firing range, • Space needs of the agency by function (sworn/civilian and classroom training. staff,justice agency staff, and citizens/visitors) 0 Assess parking and vehicle storage needs for police department staff vehicles, employees, visitors, Existing Facility (if renovation or expansion is, deliveries, repairs, evidence pickup, police auction being considered) space, and ticket sign-off area. The architect or consultant must understand the layout 0 Identify associated growth factors into all calculations. of the existing department's current facility as well as T building codes within the jurisdiction. This information I 6chnology Needs may affect a recommendation to renovate or expand the The rapidly changing information technology environment current facility. Data gathered on the current facility and continues to impact design, space requirements, and relevant building codes will include the following actions: equipment specifications for facilities. Consider conducting • Review updated floor plans of current facility. a formal technology needs assessment in addition to or as part of the overall organizational assessment. A • Review civic center master plan. new facility is the best time to review the status of each • Review zoning, planning, and building code issues. technological system and piece of equipment in use and consider opportunities to improve connectivity between ,a 0 0 a 0 a 0 111 existing and/or new systems. The following should be overseeing and managing facility maintenance upon closely scrutinized: occupancy. Adequate space allocations for custodial work areas, product storage, cleaning equipment, motorized • Size, quantity, and location of communications room(s) equipment necessary for replacing lights or changing and potential for Emergency Command Post filters, and repair shops are often overlooked in the • Access floors and ceiling heights development of a space needs analysis. • Larger computer staff and equipment areas Since the new facility may be in use for a life span of 20 or • Computers for training and continuing education more years, projecting future growth is an essential part • Computer/forensics crime labs of the space planning stage. Space must be allocated to • Officer information technology equipment storage needs anticipate changes in staffing levels, programs, and the changing demographics of the service population. While • General storage needs for high-tech gear determining future needs is difficult,jurisdictions can • Wiretap rooms and associated equipment sometimes use past history of change (typically the last 20 • Satellite up link-downlink needs years) to estimate future growth. In other locations, recent and anticipated community development can directly • High-tech driving or firearm training areas impact the need for increased police services and required • Lobby space for computerized interactive citizen facility space. participation The results of a space needs analysis will determine the • Teleconferencing areas size of a facility, which usually sets the budgetary limits of • Crime task force computer needs a project. The planning team should remain flexible and • Technological needs at firing ranges (computer open to new ideas and changes, exploring all options for simulation equipment) workable space alternatives. • Proper HVAC and ventilation for electronic and Conduct Slifte Evaluations technology equipment and evidence storage and processing rooms Careful consideration must be given to the size, location, • Workstation quantity and sizes for additional tech items and flexibility of any existing or potential facility site. Site selection determines the maximum footprint or size • Electronic storage strategies and solutions for body- of the facility and must, therefore, meet all space needs worn cameras, social media platforms, surveillance requirements. Site location determines accessibility of the cameras, evidentiary capture video and audio, increase police facility to other government staff, the public, and in interview rooms settings, and so on police officers. Examination of prior police facility planning efforts shows Site evaluation and selection must be carefully considered that many of the areas listed above, while critical to the whether exploring the possibility of renovation of an policing function, are often overlooked during space needs existing facility, acquisition of an adaptive re-use facility, analyses. It is critical that the police agency ensures that or new construction. According to real estate investors, the architect or consultant is aware of all of the agency's a primary rule in selecting property is location. This is possible space needs before completing the analysis. also true for police facilities. There are many essential The PPM should continuously help the team re-examine, components of site evaluation: refine, and redirect the project. As information is collected, Cost of land it can change a project's size, scope, budget and direction. Cost of site development It is important to include all key stakeholders in the decision-making process. Technology's role in day-to- Size and shape of site day law enforcement requires an IT specialist be included Potential for multiple uses in the planning team. At a minimum, IT staff should be Public access to site (vehicular and pedestrian) introduced to provide recommendations at the earliest project stages. Other important representatives are those Visibility and views we Afth Ah a s Ak Ah The following is a checklist of areas that might be included in the space needs analysis. It is generic in nature, and will need to be adjusted (addition or deletion of areas for study) based on local needs: Administration F-1 Electric cart and bicycle parking Site J Executive office, restroom, J Large trash storage ❑ Visitor parking conference room J Restrooms and lounges ❑ Employee parking F'A Staff offices J Secure marked and unmarked F-111 Reception areas Communications & Dispatch police vehicle parking F-1 Professional standards and F-111 Dispatch consoles and offices F-i Automobile storage internal affairs F-111 Emergency operations center F--i Safe swap zone F-111 Secured file storage/ F-111 Break room and restrooms personnel records F-111 Training/briefing room Investigation J Personnel interview and Lockers and storage F1 Staff offices testing rooms F-111 Reception areas F'A Legal advisor office, law Forensic Laboratory ❑F1 Secured file storage library, etc. J Staff office and file areas F-1 Controlled hard and soft F-111 Management information system J Evidence processing areas interview rooms F-111 Planning and research areas F-111 Ballistics processing areas J Child abuse interview rooms Public Areas F-1 Computer crime lab equipment J Controlled suspect restrooms F-i Community room (and special computer needs) F-1 Gun lockers J Front desk with ADA ❑ Officer counter F-1 Undercover locker rooms accessibility ❑ Evidence temporary lockers F-1 informant entrance F-1 Lobby ❑ Biological drying cabinets F1 Briefing room F1 Report writing rooms off ❑ Vehicle examination and short- F1 Equipment storage rooms of Lobby term storage (evidence) area (e.g., narcotics, money) J Records window if separate from Equipment storage areas ❑ Large item booking area front desk Evidence F1 Tape equipment room F-1 Bathrooms J General evidence storage F-111 Polygraph room F-i Interview room F1 weapons storage F1 Victim ID area J Vending machines ❑ F-1 Narcotics storage (computer graphics) J Media briefing area Task force needs (special ventilation) J Any required public Evidence lockers - DNA/ J Line-up and viewing room awareness materials biological storage (detention) Staff Facilities F-111 Public counter F-I Hoteling offices for outside agencies J Locker rooms with showers, F-111 Officer counter F1 Victim Advocate Office restrooms, or open lockers with Bicycle storage FA Crime Analysis Office individual shower/toilet/ Freezer and refrigerator changing rooms storage rooms Patrol F-1 Fitness center FA Arson storage J Briefing/roll call room J Defensive tactics room F-111 Hold areas for auction or LJ Report writing room J Firearms simulator training room destruction LJ Clothes and equipment lockers LJ Conference rooms LJ Office areas LJ Secured sally port J Lunchrooms, coffee areas, or F-i Safety precaution sinks, open "Hub Zones" restrooms, etc. J Evidence packaging areas J Large item return for citizens J Audio/visual tape equipment ,a 0 0 a 0 a IN F'A Watch commander offices Maintenance F-i Juvenile holding rooms F-i General storage rooms Ij Armory F-i Electrical rooms J Supply and uniform pickup area F-i Server rooms Ij Sleep center T Janitorial rooms J Uniform dry cleaning drop-off/ T Building maintenance storage return and repair rooms F-i Delivery/loading dock area Records F-i Vendor repair parking J Public counter J Officer counter Other General & Specialty J General office areas F1 Central supply warehousing area F-i Report copying area T Main computer and IT rooms F-A Micrographics/optical disk area ❑ Computer staff offices and F-1 Hard copy records storage room storage F-i Supply storage F-i Specialized computer training rooms Traffic F-i Fiscal, payroll, purchasing areas F-1 General office areas F-i Crime prevention areas • Public counter F1 DARE program needs • Motorcycle parking F-i Surplus uniform and • Citation data storage equipment storage • Accident investigations ❑ Employee mailboxes interview rooms ❑ Electric vehicle recharge station F1 Citation sign-off parking area F-i Trophy and award storage F-i Copier, shredder, mailrooms Training F-i SWAT weapons and ammo J Firing range and gun-cleaning storage rooms ❑ K9 office and kennel F1 Training equipment storage ❑ Animal control storage and rooms offices F) Ammunition and target storage F1 Classrooms F-i Video training viewing areas F-i Department weapons storage • Proximity to other governmental functions team should remain flexible when viewing all sites as • Response to citizens needs and concerns - a potential selections. neighborhood context Site selection can also be difficult if other jurisdictional • Travel and mileage issues priorities intervene. Many cities are now "built out." Buying • Positioning of new facility on site land on the outskirts of town is no longer feasible. One community may want to site the police facility centrally • Security to buttress a declining downtown. Other communities Adequate site to permit sufficient building similarly concerned with adaptive re-use may want to setbacks use the old junior high as a primary site consideration. In other areas, decentralization and/or regionalization Away from railroad tracks handling are strong themes and would impact and possibly limit hazardous cargo the range of sites a department can consider. Police At least two means of ingress or egress for police facility site selection in larger cities may have to begin vehicles with the completion of an organizational strategic plan • Noise and traffic impact to determine whether the correct long-term solution is one single building or a number of strategically placed • Expansion possibilities new buildings. • Former use of identified land Expansion or extensive renovation of a current facility can • Possible ground contamination necessitate the acquisition of adjoining land. Occasionally • Possibility of locating artifacts during site preparation this may be difficult. Owners of adjacent property might and excavation not want to sell. Further, the expansion of the current site • Zoning might not offer the optimum setting or security. All of this needs to be considered if expansion or facility renovation • Utilities/easements is being considered as a viable option. Departments should • Topography/geotechnical/soils work with their governing bodies to consider re-use of any • Waterbodies/wetlands/floodplain/stormwater control vacated buildings. • Infrastructure improvements Political and executive project commitments to the • Impact to current tax rolls by taking the property community and police department, such as site and facility size,joint use,jail inclusion, security, and building • Satel I ite/cel I phone coverage and improvements positioning and location, may be unachievable due to • Accessibility to mass transit limitations of available sites or sufficient funding for site acquisition. Continued investigation of additional sites Acquisition of a New Site may be necessary, which can delay a project. Site selection delays can in turn affect project momentum and costs Several acquisition issues must be kept in mind. The first which may increase with time. is cost. Are the sites being considered priced reasonably given jurisdictional budgetary constraints? Are the site Develop Prel I m inary ProJect �Budget owners willing to set up a reasonable timetable to acquire the site? Have EPA and other studies (e.g., geotechnical) Once the space needs analysis has been reviewed and been completed, and are reports available? approved by the planning team, and possible site locations have been considered, an initial project budget can be Site selection is occasionally imposed upon agencies established. Using the gross square footage developed when government organizations already own a new in the space needs analysis, the architect/consultant will site they want to use. The site itself will dictate the work with the PPM to put together an initial projection maximum footprint of a facility. Occasionally, site selection of the project's cost. Using unit square footage costs, will involve multiple sites until one is finally decided the architect will apply the projected space needs of the upon. All sites must be examined carefully for needed department to identify an initial projection of construction characteristics, functions, and detractions. The planning costs if building a new facility. This projection, along $sociation f Chiefs 6f Police with the space needs analysis, will be data to present to presentation by focusing on their areas of expertise to help the governing body to help confirm that the project is demonstrate the thoroughness of the planning. within budget. Evaluate 11�� ility Options In addition to construction costs, the architect will add an allowance in the budget for "soft costs." These costs Once approval to move forward with the project has will include furniture, fixtures, and equipment (FF&E), been received, it is time to evaluate the facility options. agency costs, professional fees, security equipment, IT There are three basic options when considering replacing requirements, and other specialized items that may be an existing police facility: renovation of the existing identified during this process. A simple rule of thumb is building, acquisition and adaptation of an existing non-law that "soft costs" will be in the range of 20 percent to 25 enforcement facility, or new construction. Renovation of percent of the construction costs. an existing facility may become a more realistic option if space was previously shared, and the other entity sharing Appropriate allowances for design and construction space with the department has moved out. Comparing contingencies will be included in both the construction capital and life-cycle costs for each are essential to and soft cost projections, as will estimated inflation and determine the most cost-effective use of public funds. escalation costs based on the projected construction time frame. Subsequent cost projections will be made after the The space needs analysis will have identified the various pre-design phase is complete. functional components, adjacency requirements, security needs, movement and flow between components, and Obtai"in Approval to Proceed wilth the individual area requirements. This analysis data forms a solid foundation and benchmark for analyzing available With the needs assessment and preliminary cost facility options and evaluating the extent to which each projections finalized, the project is ready to receive official option can be successful in meeting the identified needs. approval to move forward with formal site selection and facility design and construction. This is a critical step as it The preferred choice is selected as a result of the analysis will likely lock the project into a specific funding amount of each available option's ability to meet identified and mechanism to be used. If properly managed to this programmatic, functional, and space needs. Each option point, the project should have organizational supporters must meet the criteria established in that jurisdiction. as well as community champions. These groups should be Beyond meeting basic square footage requirements, tapped to push the approval across the finish line. Building examples of facility evaluation criteria may include answers on the enthusiasm and commitment for the future will help to the following questions: the inevitable restraint of committing to the project and its associated cost. 0 Does the facility have the ability to meet "essential services" of building and structure code requirements? 0 Can the project deliver the required space identified in the space needs analysis? 0 Have group components been combined for efficient operations (needed adjacencies)? 0 Is there needed security zoning provided? Seeking approval from the appropriate governing body 0 Was separate public, staff, and prisoner should be used as an opportunity to sell the value of the movements considered? project and its impact to the community. Few governing 0 Does the project achieve desired bodies want to get into the minutiae of a project, but community-policing image? rather want to understand its value to the citizens and employees. Remember to compare the existing condition 0 Is there the ability for future expansion? to the anticipated future state. Use images of similar 0 Has the ability to accept new technology systems, facilities to help others see the vision for what they furnishings, equipment, etc., been considered? are approving. Have the entire team participate in the 0 Is there sufficient parking for staff and public? 0 a A& 0 a A& • What is the adequacy of mechanical, electrical, and Code Council (ICC) has identified police facilities as one technology support systems? of the five building types that must be built with a storm • Can this facility option be acquired or accomplished shelter when located in a 250-mph wind speed zone for within capital budget constraints for renovation or tornadoes.' Codes for public safety buildings are generally new construction? higher than for other buildings, and new building codes may require extensive security measures that the existing • Does the facility support cost-effective operations and building cannot accommodate (for example, having a rated reduce long-term life-cycle costs (for example, staffing, tornado shelter to house and protect all staff in the event energy, maintenance)? of an emergency). • What is the duration required for implementation? Existing facilities often fail on the criterion of adequate • Do you need to consider interim relocation and space. In most cases increases in police services and phasing needs and related costs? personnel have not been accompanied by increased space • Does the facility have visibility and accessibility to to support them. It is common for police department the public? staffing and operations to have expanded significantly along with community growth since the time the existing Many of these criteria will require professional input by an facility was built or acquired. In many cases, an existing architectural and engineering consultant experienced in police facility may provide very little of the total required law enforcement activities and facility needs assessments, space that a detailed space needs analysis will recommend especially for mechanical, electrical, and plumbing after including the application of standards. engineering (MEP) system review. Throughout the facility option evaluation process, police input is crucial and police Older police buildings often permitted the public to needs should be the primary influence for decision-making. "walk-through" operational spaces, whether going to the The general characteristics of the three basic facility executive's office or to the Investigations Department. options are reviewed below. Secure separation between police operations and the public is a primary design goal of all new law enforcement Option 1: Renovate the Existing Facility buildings. Secure separation between employees, the general public, and prisoners who have been brought to This is frequently the first option considered. In many the facility for holding, fingerprinting, or an investigative cases, however, the existing facility may be small, interview is another. It might not be possible to develop an deteriorated, or so obsolete that there is no reasonable updated workflow within the existing facility that provides ability for it to be adequately improved. In these cases, the necessary separation between the public and police. attention can immediately move to the next two alternatives: acquisition of another building for adaptation Option 2: Acquire and Adapt Another Existing or new construction. (Non-Law Enforcement) Building In those cases where it is not obvious whether the Specific local circumstances will govern whether this is existing facility could be successfully renovated, its re- a feasible or attractive option. The recommendation of use and improvement should be explored. In many cases, the space needs analysis, or space program, will indicate government officials will not consider a new construction the amount of space needed. Caution should be taken project, or acquisition of an alternative facility, until to ensure that the "useable" space in any facility under the inadequacy of the existing building is clearly consideration is equivalent to that which the space demonstrated. If so, each of the criteria cited above needs program has identified as needed. The distinction here to be considered as well as any other that may emer ge. is between icnetil square footage and "gross" square Since nearly all building codes require police facilities footage. The "net" space is that which exists "between the to conform to structural requirements for earthquakes walls, paint-to-paint" in particular functional areas or the or high winds, it is often not cost effective to expand a amount of space that can actually be used for the tasks or nonconforming building. For example, the International functions. The "gross" space is the total building area after 1 "Highlights of ICC 500-2014, ICC/NSSA Standard for the Design and Construction of Storm Shelters."Highlights of ICC 500-2074, ICCINSSA Standard for the Design and Construction of Storm Shelters.FEMA.gov,www.fema.gov/media-1 it ass ts/documeiints/110209. • $sociation of Chiefs of Police allowing for such features as corridors, stairs, elevators, amount of needed space, will not be the only consideration mechanical, toilets, structure, and wall thicknesses. The that determines its desirability or feasibility. total gross area offered by an existing building is not going to be entirely available for police operations. A professional If the choice is made to re-use and renovate a non- feasibility analysis will be required to determine this law enforcement facility, any compromises made or relationship. This analysis is typically completed during the expectations regarding future renovations should be needs assessment process by a team of engineering and clearly documented. Often assumptions are made that architectural experts and can be requested as part of an necessary alternations and long-term fixes unable to be architect or firm's space needs analysis proposal. implemented in the original design plan will be evident to future agency leadership. These compromises, The configuration of existing buildings not originally expectations, and future renovation considerations designed as police facilities may compromise quality, should be documented so that successive commands can efficiency or even security of police operations. For easily reference them when funds become available to example, a multistory building with its space uniformly continue renovation. distributed over two or more floors may force some police components to be separated from other units with which Option 3: Construct a New Facility they work closely. This means that staff may spend more time traveling between units, reducing their efficiency. In both the renovation and adaptive re-use options, the It can also mean that needed interaction between staff greatest concern is that making use of an existing building is discouraged by the building configuration. In a local may force an agency into a facility configuration that law enforcement facility, the majority of the operational requires compromises in the quality, efficiency, and even components will benefit from a main level (street level) security of police operations. Thus, it is usually helpful location. For example, the movement of prisoners and cost-effective in the planning stage to compare and between floors is generally less desirable from a security, prioritize the features that can be obtained with new operational efficiency and staff safety viewpoint—and may construction against those that result under either or both require a dedicated elevator. Similarly, patrol operations of the two previous options. If for no other reason, this benefit from easy access to and from vehicular areas. should be done in order to see what the difference in cost would be between the choices. This information could Another important configuration issue, even with a one- be instrumental in tipping the scale in one direction or story building, will be the actual shape of the existing another, or in making it a very clear choice. floor plan. The proportions of the existing floor plan will determine how needed space is arranged. Will staff When comparing the feasibility of a new facility versus workspaces have windows? Will separations between renovation or adaptation, it is not necessary to develop a public, staff, and prisoner movements be possible? Where detailed design for a new facility. It is normally sufficient is the existing building located on the site? The existing to take the total gross square footage that has been building configuration and location may pose challenges developed in the space program at an average cost for movement flow and security. Adapting a retail store per square foot according to recent construction cost or office building, with parking in front, does not typically experiences for similar buildings in the geographic function well—since a police station needs most of its vicinity. An allowance should be added to this cost for parking in a secure area behind the building. Necessities site acquisition (if any), site work, professional fees, and such as hardening measures, cutting in new windows, and other project expenses. This comparison and analysis removing large areas of flooring for new plumbing can are typically conducted during the needs assessment all become cost-prohibitive and decrease the viability of process by a hired architect or firm, in conjunction with the adaptive re-use of a non-law enforcement facility. firm's team of engineering consultants and other relevant government staff. In those instances where the feasibility After the use potential of an existing building has been of one or more sites is in question, it will be necessary to determined, the evaluation needs to determine whether conduct a sufficient amount of design analysis to make the any compromises from optimal relationships are created. site determination. Parking and movement requirements The physical size of an alternative building being should be considered in addition to the building footprint. considered for law enforcement use, in relation to the • we a a 0 a a The new construction option brings with it the ability to exterior enclosure. Foundations and substructure are in design a facility that can respond directly to the local law addition to this "frame." The enclosure may require new enforcement agency's policing philosophy, mission, and windows, roof, and doors to extend the building life. goals. It allows projected needs to be anticipated in the original design—so they can be accommodated adequately The evaluation must consider whether functionality is or with minimal disruption when they arrive. This calls for compromised by the configuration of the existing facility. an overall master planning strategy to be developed at the Apparent cost savings achieved through renovation earliest conceptual phase of architectural design work. It must be compared against potential reduction in staffing also allows for the integration of future growth strategies, efficiency and quality of services delivered to the public both internally and externally. as a result of facility conditions. The evaluation of options is completed by law enforcement and the architect or One benefit of building a new facility is the freedom to be consultant to arrive at an accurate recommendation. creative in the design phase. The architect and planning team can consider any number of innovative approaches Lastly, departments should consider the costs and security to facility design since they are not constrained by an concerns associated with relocating personnel, evidence, existing shell. Such innovative designs typically maximize and prisoners during the renovation of an existing facility. facility response to police mission, citizen access, and overall facility efficiency. Justice Complex/Multi-Agency Approach Important budgeting information will result from the While construction costs continue to increase, shared options analysis previously discussed. Depending upon use is a consideration to gain public and political support the source of the funds for construction or remodeling, for new facility projects. Some agencies have discovered this budget assessment may establish the basis for a bond that incorporating other government or justice needs into referendum or the formulation of local capital funding the design of a facility, such as other municipal functions, allocations under recurring operating revenues. court-related functions, probation offices, fire department, communications,juvenile diversion centers, city council Compare Capital and Life-Cycle Cost chambers, etc., can make a project more appealing and cost-effective. Using the community-oriented policing The decision to re-use and expand an existing facility philosophy as a foundation for early planning decisions may be driven more by site considerations than the allows for an inclusive perspective that considers all value of the existing structure. The ability to stay at the public safety needs, as well as other related joint uses. existing location eliminates the cost of site acquisition For instance, recreational or community centers add more and the existing facility may offer space that has value community-oriented options for facility use. in a renovated form. The decision to stay could also be driven by the community and/or leadership to maintain The police facility planning team should take the time the civic presence in its current location, or in some to brainstorm possible shared uses that meet or exceed instances to show support for redevelopment or economic department needs. A creative approach should be development of the surrounding area. used, and input from others should be solicited. Often, government approval boards allow departments to include When evaluating an existing facility for renovation, other additional areas within a facility's design if they can show criteria are likely to arise. Among these are the existing an important dual use and improved community profile, mechanical, electrical, plumbing, and technology support revenue generating capabilities, or a feature that would systems. In a facility that is 20 or more years old, these add to a facility's justification. Placing another public systems may be obsolete or inadequate. This means that use facility at the same site as a police facility may be the cost of replacement must be considered in the existing considered unusual; however, for some municipalities, it or new building. If extensive interior renovation is required, may be a selling point that a new facility needs in order to the cost of new partitions, doors, security systems, receive funding. Other municipalities prefer a stand-alone finishes, and equipment can be as great or greater in police facility for security and smaller project scope. an existing building as they are in a new building. In the event of extensive renovation, the only retained value of A good example of shared use options includes the co- the existing building may be the building structural and location of police, fire, communications, and EMS into one 5sociation f Chiefs of :)lice 27 public safety facility concept. Another example is a city or and/or structures. Cost savings is important but must be county law enforcement agency and a medical examiner evaluated against the long-term reality of cohabitating in a or coroner located together. There are also many shared single facility. An internal assessment of the tolerance and programmatic areas that several agencies in a public safety practicality for these types of shared spaces is critical to facility can potentially share (for example, vehicle storage/ the design process. Each organization needs to examine parking needs, training area, locker rooms, media, and their own situation and search for innovative approaches communications). Cost savings through common use can to component or agency inclusion, design, and funding. be substantial; however, saving should not be sought at the Visit or contact other jurisdictions that have successfully expense of public safety. designed and constructed joint use facilities. Many police agencies that are heavily involved in Update Project Budget Costs community-oriented policing are now participating in multi-jurisdictional task forces to focus specifically on The preliminary facility project costs should be estimated areas such as gangs, drugs, illegal weapons, terrorism at this stage using information now available from the prevention, human trafficking, and more. These joint task analysis of various options. Projections of cost at this forces are usually made up of officers from different local, juncture become reliable as a foundation for project state, and federal agencies and need to be considered funding initiatives (bonds or government support). when determining current and future space needs (to At this stage the project team is poised to create a include potential collaborative spaces and fusion centers). reliable budget for the entire project, based on the data One option is to have the police department spearhead collected and developed during the space needs analysis facility planning, design, and construction for an entire and site evaluations. New cost information must also be site that will house additional tenants in the future. This obtained and included at this phase for the options still can be seen by citizens and leaders as forward-thinking under consideration. and progressive, providing future growth strategies and Square foot construction costs vary across the globe, utilization of a shared investment. It also allows the law enforcement agency to make decisions that accommodate fluctuate with the economy and are different depending its security and operational needs, with the foresight to on the type of facility being considered. Construction accommodate other agencies and/or civilian staff and, costs of expansion, renovation, or adaptive re-use projects it can be hoped, facilitate a seamless and cost-effective are more difficult to estimate due to the possibility of integration of future facilities and personnel. concealed conditions discovered during demolition. Shared use facility concepts may also have drawbacks. There are also other elements to be considered to further In particular, the police executive should carefully refine the budget. The quality of a facility's systems, such consider citizen attitudes about public facilities. In some as its chillers and boilers, emergency generators, and jurisdictions, voters are very likely to pass a bond issue to elevators, are not defined at this stage in the planning build a properly sized, practical, and efficient police facility. process, so estimates must be made. The quality levels of But when the bond increases to larger proportions to engineered systems, equipment, finishes, and furnishings include what the public may perceive as excessive space can affect the overall budget substantially. Efforts to for jails or courts, the bond fails, leaving the police agency broadly define expectations should be undertaken as project stalled. Police leaders must be able to gauge the early as possible. For example, determining the need for political and public perception issues relative to shared use bulletproof glass and ballistic protection of staff must be before moving in that direction and must also frame the discussed and established early in the process as they recommended option within a cost-benefit analysis that are costly additions and will be difficult to add once the is persuasive. budget has been approved and construction is underway. It is best to use qualified, experienced, and reliable cost Those considering any type of shared facility must estimators to assist in defining a budget at this time. The critically evaluate both the organizational culture and budget developed at this stage is based on substantial its willingness to accept combining services. Not every and accurate facility, space, and site information and is a organization is willing, nor is it always practical to bring reliable figure for decision-making purposes. together groups with significantly different work values Some construction and soft costs critical to the preliminary facility budget include: Construction Costs Soft Costs • Architectural, engineering, and construction estimates 0 Professional fees using space needs as basis 0 Asbestos assessment/abatement for older, existing • Site and site development cost estimates facilities (owner responsibility) • Environmental standards/guidelines 0 Environmental assessment (owner responsibility) • Stormwater/drainage issues 0 Geotechnical evaluation (owner responsibility) • Contingencies - design and construction 0 Site survey (owner responsibility) • Construction materials testing services 0 Furniture Fixtures and Equipment (FF&E)* • Landscape design 0 Telecommunications systems 0 Security systems—access control, surveillance, intrusion, vehicular control points, interviews, etc. inn 0 Distributed antenna system (DAS) or bi-directional antenna (BDA)"""1- 0 Specialty consultants for roof/envelope and commissioning of MEP systems Water intrusion testing for building envelope Audio-visual (AV) package (this may be part of the construction package) Fitness equipment package IT—new or relocated equipment, additional storage for more cameras in a new design, additional evidentiary storage for additional interview/recording settings, new telephones, new computers, etc. Appliances package Transitional planning/move costs ssoci6tion of Chiefs of Police 19 Obtai"in F11111nal Approval aind Secure Secure and Purchase Sifte Pro,ject Fundiing Once a site is selected, a facility project moves from the Once planning stages are completed and the scope and planning to the implementation stage. Lease and all other cost of the project are approved, funds must be identified options must be carefully researched prior to a decision to to design, construct, furnish, and equip the planned facility. ensure the most beneficial outcome. In many cases, the jurisdiction has sufficient funds to move into this phase; in others, alternative sources of funding are If a site acquisition is required for a particular project, it required. In most jurisdictions, the process of identifying must be purchased prior to when action is taken on major funding is occurring concurrently with this initial effort. design elements. Before purchasing a site, the jurisdiction should cost out several options with contingencies: At this juncture of the project, the police agency and the governing body should be ready to take steps to obtain 0 Purchasing site outright the necessary funding to complete the project identified 0 Gaining an option to purchase at a later date in the preceding planning phases. For example, if a new 0 Leasing the site building and new site are being proposed, project funding includes monies to purchase the site, design the facility, These options should be considered as they are the construct it, furnish it, and equip it. options that yield the best long-term financial flexibility to address future concerns for the jurisdiction should they be In many cases,jurisdictions may have capital improvement selected. Be aware that leases have many more conditions funds that can be used for the project. In the absence of than ownership. Ownership, for example, may provide available funds, bond issues or public referendums are more flexibility of building options. The planning team required to raise funds sufficient to complete the project. must also be aware of possible unanticipated site purchase If citizen support is not yet clear for the new project, a costs, such as poor soils requiring expensive foundations survey to determine support will yield useful information or legal fees to secure clear title and must have sufficient to propel a subsequent referendum or bond issue. Strong funds to cover these costs. political support is required to seek and obtain the necessary funds for project completion. There may be several alternative funding options (for governing body or community funds) that cities can explore. One is the "lease-buyback" approach. In this funding structure, the jurisdiction enters into a lease agreement with a developer who has proposed to deliver the required facility either through new construction or renovation of an existing building for jurisdictional use. The lease payments can be structured to be credited against a predetermined purchase price at the end of a specified period. Under this funding model, the jurisdiction will generally meet its lease payments out of its operating budget. The adequacy of that budget to meet lease payments over time is a matter for analysis. Ar r Ident ify Proliect Delivery Method architect team during project formulation. The police agency must clearly define its needs up front and continue A number of design and construction procurement options to maximize input with the architect-consultant and the are available to jurisdictions: design-bid-build, design- contractor. The focus here is to ensure that the needs build, and fully partnered approach. It is important to test and standards of the agency are fully articulated and which method may serve the organization and jurisdiction understood. Variations of design-build approaches can most effectively, and which method best suits new include the preparation by the police agency or owner construction versus renovation or expansion. Regardless agency of a detailed set of building requirements. This can of the choice, it is essential that a strong and continuous also include a detailed design development set issued to dialogue be maintained between the planning team, the the design-build teams for further use. architectural team, and the contractor. This delivery method also poses some challenges. First, Design and construction services are typically delivered the contract is only between the owner and the contractor, through one of the following approaches: meaning that the architect is contractually responsible to the contractor and is not able to advocate for the owner. Design-Bid-Build Second, there is no flexibility to choose the best-suited Traditionally, the most widely used method to accomplish architect and best-suited contractor if they are not already construction or renovation of a police facility is the design- presented as one team during the process of selecting a bid-build model. The process begins with the planning and contractor-architect team. programming phase (to determine facility requirements), Construction Management at Risk (CMR) followed by the design phase (developing the facility plans that respond to these requirements), and ends with In this delivery method the CIVIR comes on board early in the construction phase (award of contracts and actual the design phase and becomes part of the owner's design construction). In this approach, a very close dialogue and construction team. The CIVIR works with the design between the police agency and the architect should team and assists in scheduling, budgeting, and value occur when the project design is approved. The resulting engineering during the design effort. The CIVIR becomes design is then the basis for the bidding and selection of a a part of the working team, along with the owner, users, contractor to build the facility. and architect. In most jurisdictions, applicable laws call for a design- At some point in the design process, the CIVIR will provide bid-build approach. These laws call for any public project the owner with a guaranteed maximum price (GIVIP) for the exceeding certain budget thresholds to be advertised and project. In this way the owner retains only one construction competitively bid. The award of the construction then goes contract and knows what its maximum exposure is. The to the cost effective, responsible bidding organization. owner has a single contract with the CIVIR. Bids from If negotiations fail with the construction contractor, subcontractors are received by the CIVIR included in the the jurisdiction can move onto the next contractor. The CIVIR's responsibility. At the end of the project, any unspent decision-making process is based upon experience and funds under the GMP are retained by the owner. qualifications, not price alone. This option may be better suited for renovation or addition Design-Build projects as a CIVIR will have built-in contingencies and more flexibility to manage the surprises that can arise In this delivery method, a request for proposal is issued when renovating an older facility. to contractor-architect teams and an invitation is made to respond to the jurisdiction's needs with a design proposal Integrated Project Delivery (IPD) and guaranteed construction cost amount. Competitive proposals are received and evaluated in terms of both Integrated project delivery (IPD) integrates people, their costs and building features. Under this procurement systems, business structures, and practices into a process method, there must be strong and continuous dialogue that takes advantage of the knowledge, insights, and between the law enforcement agency and the contractor- experiences of all team members to maximize project A& 0 0 0 a 0 a a 11 outcome and value to the owner, reduce waste, and The design phase of a police facility project typically maximize efficiency throughout all phases of design, includes three phases: fabrication, and construction. 1. Schematic Design Phase: In this phase the architectural All participants—owner, designer, construction manager, team provides a preliminary design of the facility. key technical consultants and major subcontractors—come 2. Design Development: After client approval of the together early in the project to form a project delivery schematic step, design development begins. team that shares decision-making, as well as risks and rewards based on reaching established targets. In this way, 3. Construction Documents: The final step is the all participants collaboratively act in the best interests development of design documents that can be used of the project rather than focusing exclusively on their for contractor bidding and building purposes. This own individual part without considering implications for step describes, in sequential order, the actions and the entirety. decisions that typically occur and the issues addressed during the design phase of a project. Multiple Prime Delivery Method Schematic Design: Preliminary Design/ In some cases, this process is structured as a modified Layout Decisions design-build process, while in other instances it is accomplished as a CIVIR process. The product that results from a formal needs analysis is utilized to guide a project's preliminary design. The design Choosing among the three design and construction must reflect the philosophy of a department, the diversity delivery approaches depends in part on each jurisdiction's of its activities, and any future growth needs. In the historical practices. Jurisdictions can, however, obtain preliminary design stage, layouts are not highly detailed. sufficient information to aid in decision-making by taking During this stage the architectural team provides the the following steps: following services to the client: Seek advice from other jurisdictions regarding Review and confirm the program with the team recent construction by asking about the design Develop conceptual site plan and construction approach used and the degree of its success. Develop initial (conceptual) building floor plans Review the benefits and deficits of each delivery Establish and review schedule approach to determine which approach would best fit Review and confirm project budget the project. Create a preliminary selection of building systems and materials 1E)esmign the Facility Develop schematic floor plans Preliminary designs allow for constant adjustment. More Develop conceptual floor plan detailed final design concepts can be displayed in block model fashion, or even through interactive computer Develop preliminary interior elevations simulation modeling. Final design documents are then Develop preliminary building section prepared and serve as the guide for actual construction. Develop preliminary equipment list based on the space All design work is based on the space needs assessment, needs assessment which will have included both site and building adjacency Develop preliminary structural, MEP, and FP diagrams that the planning team members, including the (engineered systems) PPM, the architect, and other members of the jurisdiction Schedule team meetings throughout the schematic developed and agreed to, as well as the approval of design phase to confirm key factors for success a projected project budget. It is also common for law enforcement executives to remain involved during the Create a secure operational workplace design stage. The architectural team should consider the following when developing designs: • Established office standards versus design placement from the beginning of the design process. This new issues technology is now standard and offers the added benefits • Creative design versus operational reality of three-dimensional, visual comprehension to the traditional two-dimensional architectural drawings. This • Department centralization versus decentralization information not only makes it easier for a planning team • Vertical and horizontal adjacencies to understand what the layout and facility will look and • Interior flexibility and furniture systems function like, but also introduces important changes early in this planning process, with lower cost impact. • Efficient interior and exterior design • Specialized services Design Development: Finalizing the Facility Design • Security measures (ballistic protection, blast After the preliminary design and layout stage, the specifics protection, setbacks) of a project's drawings, specifications, and details are • Opportunities to enhance employee morale (e.g. new refined. Detailed design drawings are prepared that will gym equipment or technology, open break rooms to later evolve into actual construction documents. facilitate large gatherings, outdoor eating areas, etc.) • Police image Architectural team actions during this step follow: • Facility location 0 Refine and coordinate plans, including floor plans, • Overall costs sections, and exterior elevations 0 Outline specifications by system The preliminary design and layout decision phase will 0 Define key details greatly impact the final design of a project. The team s careful planning, comprehensive understanding, attention 0 Refine and coordinate engineered systems to detail, and a genuine interest in all facets of design and 0 Develop an equipment and furnishings responsibility layout decisions made at this stage are important to a matrix successful project. 0 Review schedule There are a range of basic and high technology methods 0 Review budget used by architects to address preliminary designs and 0 Review at 50 percent and at completion layouts. By utilizing the square footage information gathered during a needs assessment, architects may 0 Scope alignment with project budget if necessary prepare paper blocks or cutouts, each labeled and Along with re-examining criteria already agreed upon, representing a function or section's relational size, such as more refined aspects of a project need to be considered, records, evidence, locker room, roll call, visitor parking lot, such as the following: etc. Gaming sessions take place whereby a police planning team and architect manipulate these blocks or cutouts, 0 Technology access attempting to find the best adjacency fit that meets a 0 Infrastructure needs department's needs, as well as any present site constraints. This is a very hands-on approach and allows a police 0 Video applications planning team to be thoroughly involved in the process 0 Nuts and bolts cabling and discuss the realities of site constraints, functional area 0 Future needs size, adjacency relationships, and security. 0 Build in flexibility of rooms, furniture, and infrastructure Architects will then take this information and prepare (wiring, cabling) preliminary drawings. These drawings are brought to 0 Security subsequent planning sessions, whereby architect and team members comment, contribute, and refine them until they 0 Circulation are satisfied with the layouts. Durability of finishes Most architectural firms now utilize building information Special needs for locating: modeling (BIM) design software to design the police General and dedicated electrical outlets facility. The software permits three-dimensional modeling ks ocia of Police * Telephone and data jacks examine each document, specification and detail, applying * Light switches (including energy saving switches) scenario testing to ensure that the proposed design is effective. Check for the following: 19 Intercoms, video cameras, monitors, etc. Access system readers and override buttons 0 Specificity Panic alarm activators 0 Exact location Paging system and radio speakers 0 Anticipated use User safety 0 Durability 0 Description Functional relationships within a design team are critical 0 Listed make/model of acceptable contractor-furnished, at this stage. A design team must be ready to handle contractor-installed FF&E identified mistakes, troubleshoot, engage in value engineering, and resolve problems that arise. Missing or excluded items Lack of detail Value Engineering Mislabeled items As project design work ensues, adjustments may be required based on community, political, and departmental Construction Documents: Final Decisions on All limitations or needs. For example, it may become evident Project Design Elements that some items previously desired are no longer required, The final step is the development of design documents and some items not considered or debated previously that can be used for contractor bidding and building become necessary to include. In these instances, and purposes. These sealed documents include the following: when cases of scope creep, user requests, construction escalation, and other issues arise, it can become necessary 0 Architectural documents for the project team to come to a consensus and realign 0 Structural documents the project scope with the project budget constraints. This may include value engineering, which is a formal process 0 Site and Site landscaping documents that offers a way to optimize project costs. 0 Plumbing The process consists of establishing value objectives, 0 HVAC generating alternatives and analyzing them, and selecting 0 Electrical options that meet the value objectives while offering cost 0 Security savings. This process is most valuable during the design development phase and should always be included in 0 AV contract negotiations with the architectural team. If value 0 Construction permits engineering occurs after the design phase as a means of 0 Landscaping cost cutting, when a contractor can offer "deducts" to the owner for such recommended cuts, it can jeopardize the 0 Life safety longevity and function of building systems if the "deducts" 0 Storm shelter are not evaluated carefully. Reducing construction and 0 Technology installation costs by using inferior quality materials is not value engineering and will often increase maintenance 0 Project manual that includes specifications, contracts costs in the long run. and bidding requirements During the construction document phase, the architect will Scenario Testing also do the following: Scenario testing is the step-by-step analysis of how 0 Provide reviews throughout the project various actions or activities can occur in the new facility. This practice is highly recommended at this point to 0 Update construction estimates and project budgets ensure design layouts meet the exact operational need for at each review (construction manager will likely which it is intended. Police project team members should 0 a a W a a be responsible for this unless utilizing a CIVIR No individual team member-architect, contractor, or delivery method) other—has the insight of the police facility user. The Secure regulatory approvals planning team should take this opportunity to thoroughly examine all drawings, specifications, and details to ensure Revise budget if necessary that everything meets their needs. One strategy to ensure Revise schedule if necessary that final design documents reflect all user needs is to Obtain approval to bid create a checklist or rubric for each planning team member to complete for the design documents. These should In addition, the following are optional additions to the also be reviewed and approved by all command staff and construction documents list: other key departmental staff. Once the plans are finalized, they become construction documents, and all changes Telecommunications become costly. Avoiding design revisions during later Furniture construction stages will save time, money, and problems Food service requirements for all concerned. Whenever possible, changes in design, specifications, or Throughout each of these design steps, the jurisdiction details need to be made prior to construction documents and/or the law enforcement agency has significant being completed. responsibilities to collaborate with and provide information to the architectural team. Some examples of these The length of time to transition from preliminary design responsibilities follow: through design development and finally to construction documents varies, depending upon the size and scope Schematic Design: Provide topographical and of a project, architect's time schedule and resource boundary survey, soil borings (geotechnical commitment, and the level of involvement of a police evaluation), environmental site assessment and project team. PPIVIs are encouraged to maintain good remediation (if necessary), site infrastructure communication with the architectural team, in an effort to information and connectivity, and program receive all detailed drawings as soon as possible to afford budget requirements. the greatest amount of time for review. Projects are on a Design Development: Review documents to ensure tight schedule at this point and too often not enough time program requirements and standards are met. is set aside for owner examination of completed drawings. Construction Documents: Review all plans and The quantity of final drawings, specifications, and details specifications to ensure program requirements are met. for a project can seem overwhelming. Breaking down The jurisdiction, in particular, the facility end-user, the documents by category, such as electrical, security, must fully understand, take on and complete all owner plumbing, furnishings, and interior finishes, can greatly responsibilities to ensure that the project reflects all assist in dividing them up within a team for analysis. initial planning requirements and that the overall project Identify any drawings, specifications, or details that are proceeds in a timely fashion. incorrect or need clarification and set up ample time to discuss these with the architectural team. Throughout the design phase, it is important to keep all relevant stakeholders involved. This will be more easily The more detailed inspection performed by a police accomplished if government and budgeting officials are on planning team, the greater the chances items will be the project team. If not, make sure that the PPM is keeping discovered that need to be changed or addressed. Some all necessary government and building officials apprised examples of this include the location or quantity of of new developments in the project. The same is true for electrical outlets, selection or positioning of furnishings, the community. Find ways to engage the community in the concern over selected interior finishes, and identification of process and keep them apprised of how the facility project which doors are solid and which need windows. Attention is progressing. to these details adds to the efficiency and durability of the future facility. $sociation f Chiefs 6f Ace Build the Facility There are a number of issues relevant to the construction phase that must be attended to by the jurisdiction. Once The PPM should be on the construction site at regular construction begins, law enforcement agencies and their on-site job meetings to observe and attend construction governing bodies should be aware of and be responsive to meetings, approve submittals, discuss design issues, the following: and build rapport with the contractor. Continuity from pre-design to construction is essential to maintain Communication protocols between owner, architectural project integrity. team, and contractor Construction times vary depending on the size and scope Owner's construction project controls of a project; schedule; and natural or imposed delays, such Standard types of field communication and record as weather, difficulty obtaining specific materials, or other keeping (always keep records and signoffs) variables. It is vital to select a contractor, CMR, or design- How to handle periodic pay requests build entity that has a good track record of delivering facilities on time, within budget. How to conduct site visits How to understand shop drawings and remittals Most public projects are competitively bid regardless of the type of project delivery method the community How to understand and make use of scheduling tools chooses. The law typically requires an invitation to bid How to deal with change orders and/or contingency be distributed. authorization usage How to deal with periodic changes to regulations and A Design-Bid-Build building codes This type of project will require a general contractor. The How to deal with unforeseen construction field project architect may be asked to prepare or assist the conditions purchasing department in preparing the advertisement What to expect for construction close-out for bid, which includes information such as the project Sales tax rebates - some range from 2 to 3 percent location, description, type of contract, date, time, location for receiving bids, how to obtain documents, and any 0 Difference between "substantial completion33 and "final other special requirements. An attorney should be completion" (and the associated legal ramifications consulted before using any bidding model or bid language. and responsibilities) Once deemed qualified (generally through documented 0 How to incorporate and manage a contingency and experience in constructing similar projects of scope and testing allowances into the final construction contract size, proven record of quality constructions, etc.), bids by 0 Definition of"retainage" pre-qualified contractors are accepted and a successful bidder is selected. 0 Definition of"warranty period" Construction Manager At-Risk or as Agent During construction, architectural and law enforcement team members should focus on oversight, solving design When a community chooses this delivery system it will issues confronted during construction, and approving issue an RFP/RFQ that is not asking for a construction submittals and substitutions. Successful accomplishment bid, but rather for its fees for pre-construction services, of early planning and design steps supports successful overhead and profit, a fee for construction services, and construction. Collaboration on ideas and solutions during general conditions. This approach, as previously described, construction results in an even more successful project. brings the construction manager on board during the The PPM should utilize the services of networking, design process to work with the design team to manage data, and communication professionals (internal or the project. external) to address agency-specific technology needs. If an agency utilizes its own internal operations and • 0 Pb s a n,ri�fi,(�O�Fa lifie 01 fri'6­ I I communication center, determine a process of system plan is required. Members of all transition teams need to and network continuity and reliability during the period(s) be detail oriented. Transition planning is a crucial element of their transition to the new facility. Utilize a secondary during the construction phase. Transition teams are crucial communication center via local public safety partners to the project's success and should be chosen early based during critical system transitions and movements. It upon commitment and organizational skills. is strongly suggested that agencies facing imminent operational communications and networking transitions Transitional Planning consult with trained, certified, licensed networking professionals prior to implementing agency core Transition planning refers to a relocation of personnel, communication and networking changes. Additionally, equipment, documents, and furnishings from an old chief executives and command staff must ensure that location to a new one. Transition teams are established to redundancy in agency communications and network ensure detailed planning takes place, scenarios are tested, capabilities are ensured at all transitional stages. Field and and a smooth changeover occurs. It is highly advisable to support operations must have operational awareness of include a variety of staff representative(s) on all transition any periods of communication and network transitions teams to ensure staff buy-in and consensus. in the event of system disruptions and failures, as well as The following list outlines recommended transition teams countermeasures to cope with any unanticipated failures. and their assignments. Project members should strive to be good neighbors Pecomt-r7ended Trot 7sit on 7�?ar-77s during a construction phase. This can translate into project T-shirt and hat giveaways; social media campaigns; or Move Logistics - Coordinate review of bids from newsletters to community members identifying a project's moving companies, establish detailed inventories of progress and the time of day when certain tasks are what will and won't be moved, determine scheduled performed, which will help appease residents bordering phases of actual move, and oversee movers and a construction site so that they know what to expect. A employee compliance and timely unpacking. construction office phone number can be made available Orientation and Training - Preparation for to all bordering residents so they may call and register groundbreaking ceremony, official opening, and complaints directly to a general contractor, who in turn, monthly employee and community updates on can handle a complaint or fix the problem. The same can project's progress. Coordinate employee training on be done through social media and email. new equipment and procedures. Handle requests from As the police facility planning and construction process public, politicians, media, and employees for tours involves many stakeholders—and any communication and briefings. network changes and transitions may impact those Contracts and Services - Identify and write stakeholders, community involvement and awareness specifications for new and renewed contracts and cannot be overlooked. Consider distributing press services, such as food service; inmate medical; building releases and posting updates on social media during the maintenance; and janitorial, trash, and equipment transitional communication and networking changes to maintenance. Timelines are crucial to ensure new keep the public aware of means to communicate with their contracts are awarded at move-in, so services are law enforcement agency. not interrupted. Move-in and Occupancy Policies and Procedures - Identify and respond to possible changes due to new facility rules, layout, and so forth. Usually encompasses department policies Develop Occupancy Strategy dealing with visitors, handling of inmates/suspects, Civilian and sworn staff satisfaction with a new facility security or maintenance issues, and so on. Changes in is affected by the manner in which the transition to department policies or procedures need approval and occupancy is carried out. Confusion, loss of information, dissemination prior to or during move-in. However, and other transitional problems can negatively impact staff please note that many of these issues should have morale. A clear and well-designed transition to occupancy been addressed and resolved in the pre-design and 5sociat.li.on hiefs 6f Police Y design phases, in particular, while conducting an storage solutions without allowing for any substitutions, a organizational assessment. contractor maintains control over the selection and final • Testing and Acceptance - Crucial pre-occupancy quality of such items. testing of all items, such as locks, telephones, electrical It is important to note that contractor-furnished, outlets, lights, toilets, showers, furniture (ergonomic contractor-installed items are specified by an architect features on chairs, keyboards, drawers, etc.), panic during the design stage. Years can pass between design alarms, cameras, and so forth. The goal is to discover and actual occupancy of a facility. Thus, a technological problems prior to move-in and assist with repairs after or ergonomic specification of an item may be out of date move-in. before an owner actually starts using it, especially for • Commissioning - Air conditioning, heating, and items such as security and electronics, computer hardware so forth. or software, chairs, and keyboard holders. See Appendix for additional transitional Owner-furnished items present a challenge for PPMs and planning considerations. members of an FF&E transition team. This group will have an opportunity to decide what items will be moved into Resolve All Equipment Purchase and a new facility and what items will be replaced by new Replacement Issues ones. Detailed planning regarding what, when, and how to purchase these items are vital components that play a A major concern during transition is the installation of part in intelligently allocating a budget and keeping to the 911 phone lines. Some areas will need to plan three to six transition timeline. For example, one police department months in advance with their local telephone company found that replacing the file cabinets with lightly-used to ensure on time delivery. It is important to confirm cabinets appeared to be less expensive than buying the schedule with the telephone company close to the new ones but found that the process took much longer move-in date. and was more expensive than anticipated. The security One approach to 911 transition is the operation of parallel and confidentiality of records are essential during the systems, where the system in the old facility continues transition phase. to run and take all 911 calls and the new system becomes Many organizations have a separate purchasing operational simultaneously, but only to take "dummy" calls department that handles the bid solicitations, to test operability. Once operability is ensured, the old bid openings, and purchase order contracts. It is system is shut down and all 911 calls are transferred to the recommended that a single member, or perhaps two new system. members of the purchasing department be appointed It is important to determine which FF&E are provided by to handle all purchases related to a new facility project. a general contractor and which are provided by an owner. This task can be overwhelming, especially if the FF&E Most situations fall into one of the following categories: budget is large. Assigning one or two people to work closely with and be members of, the FF&E transition team, Contractor furnished, contractor installed (CFCI) is recommended. This procedure promotes translating Owner furnished, contractor installed (OFCI) the needs of the police department to the purchasing department. Equipment purchases should be negotiated Owner furnished, owner installed (OFOI) with attention to infrastructure, space needs, installation The contractor-furnished, contractor-installed category plan, and maintenance issues. Ensure all large suppliers limits an owner's ability to alter colors, patterns, makes, and installers can meet project deadlines and have models, or details to better fit a user, upgrade to a newer experience and references. design, or address the needs of a changed department preference. Often contractors will provide the exact color Create a Move-in Strategy and finish that has been specified by the owner during Transitional planning for a move is essential. The creation the design phase or in approved submittals. However, of a move-in logistics transition team is recommended. unless details of a contract specify a particular make For larger organizations, a move can be compared to a and model of an item, such as specific lockers or other military operation. Groups are moved in by priority with 0 Inefficient use of elevators the following factors being considered: 0 Blockage of loading and unloading staging areas • Dependence upon a working IT system 0 Driveways blocked due to quantity of vehicles on • Reliance on functional communication system scene • Need for access to records 0 Lack of moving equipment and elevator access • Obligation for evidence to remain secure 0 Employee reluctance to move heavier items • Dependence upon secured suspect holding areas If a professional moving company is used, a transition team • Access to citizens should prepare specifications to allow for competitive bidding. A complete inventory of all items being moved, Every detail must be considered, timed, and pre-planned if a moving schedule, and a mandatory job walk-through of a move is to be successful. Acknowledge the psychological both the current and new facilities should help to obtain stress of moving and change. Layout maps of the new fair bids. facility should be provided to all staff. When employees know the general layout of a new facility and the location Conduct Extensive Pre-Occupancy Testing, Training, of their workstation or office, the stress of moving is and Staff Orientation greatly reduced. Consider conducting tours of the facility with staff six to eight weeks prior to move-in so they Extensive pre-occupancy testing, commissioning, training, can gain familiarity with new settings, adjacencies, and and staff orientation should begin during the last months amenities. These tours can also be used to solicit input on of construction. All transition teams should be working the move-in plan and improve efficiency. Packing seminars at full speed. The PPM will be inundated with details and can help streamline the moving process and greatly reduce decisions. Strong organization skills, leadership, time employee concerns. Ensure that communication takes management, and stress reduction expertise will be place as to what will and what will not be moved to a new required during this fast-paced stage. facility. Inventory listings are a good way of documenting The construction team and any relevant subcontractors what will be moving and when. Ascertain what special are responsible for testing everything from plumbing to current equipment requires vendor disassembly, moving, electrical systems, security systems, and furniture systems. and re-assembly, due to warranty concerns. Establish a They are responsible for all tests of their applicable "lost and found" for items misplaced during a move. systems and installations. Staff should not perform any of Encourage an appearance of organization and "back to these tests for proper installation. Staff should be involved business 55 as soon as possible. Set dates for unpacking, and in scenario-testing with the architect and construction ensure staff adhere to them. Establish packing box drop- team after installation and systems tests have been off points for empty cartons—and have a staff member conducted successfully. Running through scenarios, such circulate daily to remove empty boxes from hallways, as a panic alarm activation or a loading dock delivery can storage closets, and workstations. ensure that all facets of these situations were considered and included in the design and furnishings. Staging Organizations that move themselves can face many other scenarios, such as an officer delivering a suspect challenges. Some important considerations include to a holding room and conducting a taped interview or the following: simulating the preparation and delivery of food from the Possible employee injuries holding cell kitchen to inmates in their cell, can identify equipment that isn't working properly and ineffective Down time procedures. Scenarios are useful tools to test the Unprofessional appearance performance of elevators, security door locks, intercoms, Employee confrontations audio/video recording equipment, gun lockers, and so on. With scenario testing, potential problems can be identified, Damage to the new facility documented, and repaired prior to move-in and within Overall confusion product warranties. Delay to moving schedules sso6atibn f Chiefs 6f Ace ]39 Unlike scenario-testing, commissioning is the thorough Commonly Forgotten Items test of a system (HVAC, security, video). Depending on the time of year that occupancy takes place, one may be Frequently, general contractors are not completely finished able to test only the HVAC cooling aspect of the system, with a project when the occupants move-in. There are so a contract should require that the HVAC contractor always areas or equipment that are included on a "punch come back one month prior and during the cooler months list" (items noted during the final walk-through by the to commission the heating system. This process includes owner that require repair, touchup, etc.). Often, owners system setup, training, operation and maintenance will move into a facility with many items pending. The schedules, spare parts, and system testing during normal contractor will remain on site or return on a daily basis to and adverse conditions. As well as testing contractor fix some or all of the items. Completion could take months installed items, this period of time allows for thorough (or years in exceptional cases). The PPM must maintain examination of other items provided by an owner; continued contact with the contractor to ensure the work telephone systems; and office equipment such as copiers, is completed. furniture lighting, and ergonomic features. Verifying that Since the workload of a police project team greatly everything works well ensures a smoother transition during increases at the later stages of a project, many areas can move-in. be overlooked or forgotten. The following list can identify Training needs to be conducted for personnel who will be potential problem areas: using new pieces of equipment, such as laboratory fume Ensure a facility's infrastructure is prepared for hoods, automated shelving systems, loading dock levelers, occupancy. Remember to order, stock, and distribute vehicle lifts, and so on. Building maintenance personnel will all necessary items, such as paper towels, hand require many hours of detailed training on all new facility soap, toilet paper, and janitorial cleaning equipment systems. It is recommended that training sessions of this and chemicals. type be video recorded and maintained in a training library. Coordinate a systematic approach to the facility's Employee public relations are important too. Smaller many keys. Inventory, tag, issue, duplicate, and secure sectional tours are recommended to offer a more personal all keys (doors, furniture, files, restroom accessories, approach to future facility occupants. The tours should clothes lockers, mailbox, gun locker, cells, alarmed assist in familiarizing everyone with their new office space emergency exits, access system override keys, and the overall building layout. mechanical equipment ignitions or locks, electrical Some jurisdictions use moving into a new or remodeled panels, elevator keys, safes, etc.). facility as an opportunity to evoke department pride by Ensure warranty information files, sometimes called taking a departmental staff photograph in the new facility. operations and maintenance manuals, are set up This move-in event can be an exceptional and memorable and maintained. Decide who will keep equipment experience for the entire organization. maintenance warranty information, furniture warranties, and so on. Another pre-occupancy public relations responsibility is to Placing certain restrictions on telephones is often determine the quantity, design, and location of any facility overlooked. Some phone systems allow for restrictions project recognition plaques. These decisions are not easily to be placed on phones to limit calling locations. Phone made because they can be politically sensitive. In any abuse by staff or contracted employees, usually within case, gain approval of identity, correct spelling and correct certain areas, such as a locker room or conference titles, and order and placement of any names associated room, usually cause restrictions to be placed with the plaques. Also, ensure all plaques are ordered in a on phones. timely manner and are delivered and installed according to schedule. If possible, try to engage the community in some Establish a phone number "hot line" or circulate repair of these decisions. For example, have a contest for the forms where employees can report furniture, phone, or community to name the community room or a fun after- equipment problems that can be addressed quickly by school area for students. testing and acceptance transition team members. • Address maintenance issues such as janitorial, steam CONCLUSION cleaning, rodent control, trash clumpster pick-up, chemical storage, maintenance contracts for items Planning, designing, and constructing a police facility takes after warranty, and so forth. a tremendous amount of time, effort, communication, and • Facilitate signage needs for the following: deliveries, commitment. While some projects are completed in two overhead clearances, after-hours phone use, lobby years, others might take ten. Commitment to the project hours, visitor protocol, room identity, kiosks, parking, and consistent communication between all stakeholders, intercom use, general directories, legal rights of including city officials, agency employees, and community arrested individuals, and so on. members, are critical to the overall success of the project. • Coordinate general post-occupancy tours for The role of law enforcement executives and the planning VIP's, project architects, and other visiting public team cannot be understated. With adequate planning safety agencies. and a commitment to the organizational policing philosophy, a new or renovated facility can do more than Review Delivery of Construction Services address deficiencies and inefficiencies. It can position the department to deliver new and improved police and Once an agency has moved into the new facility, it is important to regularly evaluate and assess the success public services that were not previously possible. While the architectural team should comprise public safety facility of the project. Does the facility meet the operational, a experts, only the law enforcement executives and police administrative, and community needs of the department? planning team can develop and relay the long-term goals Consider comimunityEngagement and needs of the department that the facility must satisfy. 0 p p o Iirt u n iftie s For more in-depth training on this process, attend the IACP The completion of a new building is a significant public Planning, Designing, and Constructing Police Facilities relations opportunity for any jurisdiction or department. course. Upcoming course information is available at Use the attention wisely but ensure an extensive facility www.t helACP.org/PoliceF'acii i ties., check is made prior to any event. Consider the following public relations opportunities that can be used to test the facility's access, traffic flow, adaptive use of space, and lighting and equipment testing: • Receptions • Open houses Tours Media releases Media tour of the building and orientation Keep the community apprised of opportunities to partner with the department and utilize shared or community space once the facility has opened. If the facility boasts a community room available for use by local community service groups, advertise that information widely and connect them with the appropriate department liaison to coordinate future use. Throughout this process, the department's policing philosophy should be considered to ensure that the facility functions to operationalize that philosophy once construction is complete. . ......... At A Pre-Move Determine who is responsible for creating, maintaining, and updating content to be pushed J Determine who will oversee actual move logistics to public screens and shared staff areas. Is for agency. there any equipment required for this that IT • Determine if an RFP process is required for should acquire? selection of a moving company. w Finalize office, workstation, parking, and • Determine the scope of work for paid movers. locker assignments. • Determine the point of entry into the facility. J Develop point of contact to integrate and test all • Determine how floor/wall finishes will be communications systems: protected in the building and elevators. 0 Determine who is responsible for installing • Determine how items being moved will be kept console package (IT, IS, vendor). Remember to secure (especially evidence, equipment, and allow a burn-in and test period. records). 0 Assign phone equipment and extensions. • Determine how everything will be transported to F-A Determine who is responsible for programming its final destination. ❑ and integrating facility security system into F-4 Determine items that can be discarded. department's evidence and property database. * Consider which items can be discarded, F-i Manage equipment control and distribution: donated, digitalized, or repurposed early in the 0 Develop a database for all equipment transitional planning. distribution (e.g., vehicle keys). * Establish a fixed date and time for clumpsters 0 Develop a plan to move existing equipment and recycling bins to be made available. being kept. For example, * Instruct people to take all personal items D fingerprint processing station (CSU); home until after they move in. This will limit overcrowding and loss of items. Spaces D copiers, scanners, printers; may be radically different, and this may also D computers, monitors, and so on; make it easier for staff to adjust to their D shredders; and new workspaces. D charging stations for body cameras and * Set clear expectations for behavior, routines, and radios - who is going to disassemble the procedures in the new building. Some examples current charging stations. include the following: ❑ Coordinate supplies and deliveries (primarily if the * Clarify criteria for acceptable wall and/or door facility's location has changed). hangings. Are they allowed right at move- in? Will they be allowed in the future? Who 0 Consider waiting until the move is complete is responsible for performing the task, staff before allowing supply deliveries to the or facilities? new building. * Clarify what personal devices and appliances 0 Acquire new stationary with correct address can be brought into the new building (personal for all employees who have business cards and fridges, fans, heaters, etc.). personal stationery, if the address has changed. * Conduct gear and equipment walkthroughs. 0 Notify any supply vendors and partners of the Are there multiple storage options? Who is new address. responsible for cleaning and maintenance? F-1 Provide information and access cards to employees 0 Dispatch consoles for building access. Considerations should include 0 Holding area/jail cells the following: • Determine who will oversee this process for LJ Ensure all remaining items not included in FF&E the agency. package are purchased, for example, • Determine where the security workstation is to 0 coffee makers; be assigned. 0 serving dishes, silverware, and dishwasher • Create personnel profiles for programming cards detergent for hub zones and break rooms; (security protocols). 0 vending machine (and necessary vendor • Create pin codes for each secure area. contracts); • Issue access cards. 0 metal detector (if wanted); and • Issue toll tags for vehicles assignments. 0 tubs, bins, storage solutions for new shelving, compartments, and amenities. • Issue keys for any relevant security protocol designations, lockers, offices, and furniture r-1 Plan tours for stakeholders and staff: pieces (file cabinets, wardrobes, etc.). 0 Conduct tours with staff and volunteers (many FA Determine new security protocols. Consider times) once the project is near completion. This security protocols for the following items: will help get them oriented to and familiar with the new building layout and work environment. • All public interface points (e.g., all public lobbies and entry points, public elevators and LJ Consider hosting a dedication or grand opening for staircases and protocols for escorting members the facility. Some logistical items to consider might of the public to secure spaces or public counter be the following: for investigations) 0 Postcard/newsletter invitation and public notices • Catering and mail deliveries. Protocols for identifying day and time processing mail 19 Dedication coins (type, graphics, & quantity) • Facility temperature and lighting schedules and 0 Program settings 0 Grap hics and foam boards for the event F-1 Develop and administer relevant training for Planned tours of the new facility staff on the new facility and security procedures and protocols. Consider trainings to help staff 0 Speaking opportunities and festivities: understand the following: D Speakers • Evidence and property system D Participants (Scouts, Veterans Associations, • Electronic equipment distribution (controlled by etc.) biometric access) D Setting (multipurpose, exterior portico, lobby, etc.) • Appliances >> Flag raising • Video production >> Unveiling dedication plaque • Fitness equipment D Ribbon cutting • Interview rooms D Refreshments • Storm shelter D Giveaways • Furniture (high density) D Tours - staff conduct these in smaller groups • Crime lab (chemical, powder) or position staff throughout the building to explain that particular area • AV systems D Dedication of memorials • Lighting • HVAC • Elevators $Soclation f Chiefs of Ace F-1 Moderate expectations: * Things are not going to be perfect, and there will be hiccups. * Procedures should be put into place for warranty requests, contacts, and priority status. * Communication - ensure staff knows to overcommunicate with questions and concerns that arise throughout the move-in process. * Clearly convey to staff the expectation and procedures developed by the planning team/ leadership. * It typically takes 1-3 months to address the initial bugs of the new facility and get acquainted to it. 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V � ,, l r, f �/ nin.,, �I�������������I" "'�r'°, iu, n ,,. �(!ul IIIIIII IIIIIII �, u A ! uuuuuuuuuuuuuuuuuuuuuuuuuuuuum � ... �e f G r i �, r ., �i i._ `�. /,. y � �, ,,, i / /� See attached for the IACP (International Associate of Chiefs of Police) Police Facilities Planning Guidelines. There is no standard out there that dictates the size of each space like the MSBA offers. We base the program areas for each space in Massachusetts specifically on typical sizes of similar departments within the Commonwealth. These spaces are not an analog for an empty room either. We make sure that we program these spaces such that they can accommodate the typical furniture and equipment for similar departments and then make small adjustments as needed to tailor to the specific needs of each department's operations. Much of these spaces are specifically dictated by the equipment and use. A couple of spaces for example: Sally Port—this space is sized for an ambulance to be able to enter the Sally Port, shut the overhead door and have enough clearance on all sides to open the side doors and back door while allowing for a stretcher to be unloaded and loaded. This is to ensure that a prisoner that requires medical attention cannot escape while being transferred into the ambulance. Dispatch—the number of workstations is based on call volume. 3 is fairly typical for a Town of this size with the volume you experience. These spaces are designed around the dispatch consoles, clearance around them and the ancillary manuals and monitors that need direct visual access and control from each station. These are not a typical cubical,they are specifically designed for the function of a PSAP (Public Safety Answering Point). Much of the standards that govern the design and function of this space and the communication equipment room are contained within NFPA 1221. Locker rooms are specifically designed based on the number of officers currently employed with a 50 year projection to accommodate future growth. These lockers are also specific to police facilities. They are 24x36x72" with a 12"wood bench. They are directly ducted to allow for gear to dry without propagating mold growth. They have power to charge cell phone, radios and flashlights. They have safe storage for pistols. For assumption on officer growth we can make assumptions based on the population. The average officer per capita is between 1:500-1,000. Current population estimate from 2018 is 33,727 so we would assume that you would have between 45-66 officers. Additionally, population between 1970 and now has doubled and from 2000 now has increased by 10%. This can be simply plotted on a chart and modified based on assumptions of growth based on current and future development. This is a small sampling, but most spaces in the PD are specifically designed for their function. Each department operates differently and therefore there is no direct standard. I would add,the spaces in the building are sized within similar net square footages of similarly sized departments within the area. The only spaces that are slightly larger, or unique to this department are the following: Public spaces: These are slightly larger than some similar departments. This is for creating a more welcoming space to the community for more positive engagement between the department and the public. We also have more public services off this lobby so it needs to be large to deal with the additional doors and windows. We are also dealing with an existing facade that forced the lobby itself to be large to accommodate the existing condition.Total public spaces on main level: 3,640 gross square feet. This includes the training room. If I was to make a guess at the size of this versus similar departments I would say it is approximately 15% larger, or about 550 sq/ft. Interior parking: 5,550 gross square feet. I have not included the maintenance garage or the sally port as those are fairly typical spaces in most police stations. It is important to note that this is not a 1 for 1 cost per square foot as the rest of the building. All of the functions on the upper level are a result of public function and department internal coordination. These spaces all need to be adjacent to each other and on the same floor in order for this facility to function effectively. We put as much program on the lower level as possible, and that the department would be comfortable with. In doing that,the garage space would have been covered by the offices whether it was enclosed or not. Had it been open to the elements there still would have been costs associate with changes in grading, stormwater run off, and insulating and fire rating the underside of the building above. Because of that, there was a modest increase in cost to fully enclose this space. The advantages in doing this is that it not only gets cruisers under cover, but also has them in a warm and dry environment. This helps in officer response to their cruisers and the street. It also create an additional layer of security. Rather than a partial height wall, chain-link fence or open-air parking,this is now a secure environment protected from whomever in the public wishes to do harm to the department and the cruisers. Total Building gross Sq. Ft. = 33,590. If we removed those from the program (total 6,100 sq.ft.) the department would be 27,490 gsf. This is not out of line with similarly sized towns. Let me know if there is anything contained in this email that you would like elaborated on, removed or edited. If there is anything missing let me know. The last piece I am tracking down is the approximate cost/sq ft for the garage bay versus protected, secure under building parking that is not conditioned. 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SUGGESTED MOTION: n/a FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 8:15 p.m. ATTACHMENTS: Description Type u v N u v v � 4—j OQJ 0 E 4-j 0 o (a) u Q) u V) 0 O > 000-P 0 0 0 rr) �. U N Q� O 4-j � v o4-j 0 z4-j 0 0 4—j +Mj m Q) .v o0 � J 0 S i d N W L N y' O 4-a E U con Q ca w w O � � O m Oto*Mfts% Ln -1-i ro < O _ c- ooE 4-j 0 INC 01 4�J 4-J O m E Jc: 0 0 +-j 0 4-j < > o> to -0 ro Q 0 4-J r*4 (3) � O 0 M C- � � � ca ca N N N u 0 4==J 4==J z v U N 4==J +-j E c v 0 Q 0 p � E O C L 801111111 � � U 00 �, cr O I� 0Qj 0 < Miami < (an E 0 C: 0 4... 0 O � o aA c� 00 _ . c.0') Matz� CODOMINION � o —o E E DO- 0. D � O E O cr w � 4j N >% 4-j > 0 DOMINION Q. aala—) MaQ u w "**a IQ Q.) Qj Q(an onaltam, MONWAIM (In E Q.) 6 a Lama. 0 0 u u E 4-J E-1--ol 'NLam. �oftam. � � � can v�i (on f� 0 %Q '0 '0 Miami0 � O � � 601111110 tootamam � o oZo .� O C� 0 0 0 � V m O C� � O C� u 0 70 C� ec� E 0 Ln 0 =3 0 3: 0- 4-j ro 0 U p =3 o 0 V) ro N o Utn O L +, u w Ln O V mo u o 0 Q � Q E G G G G G G CL 1 1 1 1 1 O O O O O O O O O O O O L 1 L / V/ u 1 u 1 L 1 W W O O O z z z Q Q Q Q Q Q O o 0 0 0 O O o O O o O . . . . . . . . . . . . a) ro m m -0 -0 a� s C: }, a) O E •- +-' O V '� O CT V4-j O > 4-' U O s U `� •- Ln CD o +� o0 c� , O4-1 u . . a� Q O Ln 0 � 0 L U0 � L � Q � L � ate-+ 4-J � U L O .ON i Q 0 0 u 0 �; oa� o o 0 0 � 0 � � o AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Safe Routes to School Update PRESENTER: ITEM NUMBER: Judy Crocker, Safe Routes to School Coordinator 1.7 SUMMARY: Judy Crocker will update the Board on the Safe Routes to School Program. SUGGESTED MOTION: N/A FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 8:20 p.m. ATTACHMENTS: Description Type D Preseraatliori........111 exington.2020 Back.i.q.)Material D S.R.7111'S Overview I exingtorl 201.1.9 2020 1.,ackup Material IW�uuuu��l ul�ll Lij e. V I�pf�u oym�r uuuwww�� � C. AM j4ma U )� Lu Of�pl���m��mu�mu�uiuuuuuuuuuuui�u�i of I! VI . V V { of i� j Y fC" Wry g r f< r/ ,r i r � i i i i r , r r t o� o i � f i u: u � r i r% 1 r "774 w 1iu'Nw� 00I "M�U, wd"✓✓ ur""u'°��, pi �W ,a / u � � 1 " , "9� yy �f y �V N �/ � 'rl inw ��a �.. �vlr rrN ��r�nr,1,�N f��� ,�r�ur � � rf/ w""•anl^��� �, aar r r P z, 1 "i i,019, Mf I/,')41 '41lli N J ��(�� tad X so JJ�I11 � �,(ftl1� y,/V i ;n1M77`' ,.,..� l � - fool �: ( JIB /{N✓,(� �� i N „a r MMMM (, ll1' Irk 0 r��> Gfid r' Ih x� "H r.„; " ��� 1_3 �.. 440 m m r v ��V 6'ki II� 6.. 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What SRTS is and isn't: Neighborhood by neighborhood, SRTS has been successful in making our community's sidewalks, bikeways, and pathways a safer, more attractive transportation option for our students. Focusing on safety, exercise, and fostering a sense of community, it has been effective in increasing the number of students who walk, bike, bus, or carpool and in decreasing the number of cars and idling at our schools. The Lexington program has earned 5 state awards and been awarded 3 grants totaling near $500,000. SRTS is modeled after national and international programs. About 65% of MA elementary and middle schools participate in the program. SRTS in Massachusetts is managed thru the Massachusetts Dept of Transportation. As are the other local programs, Lexington's SRTS is sponsored by local PTAs, was formally overseen by the Lexington Sidewalk Committee, and works closely with DPW, Engineering, LPS Transportation, Facilities, and the Planning Dept. The Selectmen, School Committee, Superintendent, and the Police endorse the program. 2. 2019-20 Program Calendar Walking Wednesday dates: • Oct 2, Nov 6, Dec 4, Jan 8, Feb 12, March 4, Apr 8, May 6 3. Recent Accomplishments: • School Bus ridership at 56%, representing growth rate of 81% since 2012. • Flashing School Zone lights installed thru 2017 Lexington Complete Streets grant, the final recommendation completed from the ad hoc STS. • Principal member of Lexington's seventh annual Bike Walk n' Bus Week. • Working with TSG, secured 2016 Harrington Flashing School Zone pilot. • Successfully help to develop 2014 LPS Traffic Safety & Mitigation Policy. • All nine LPS are partnered with the Mass Dept of Transportation • Along with DPW, awarded 2013 MAPC grant for School Zone Evaluation. • Contributed to the 2013 Preliminary LPS School Traffic Evaluation Study by providing empirical data and accompanied engineers on all site visits. • Principal member of ad hoc School Transportation & Safety Study Committee (STS), dissolved April 2014. • Successfully put forth 2012 Town Meeting Article (School Bus Subsidy). • Created, executed, and compiled 2011 and 2012 School Transportation Survey Report with LPS Transportation and Lexpress. 4. Looking ahead: • Work to further develop LPS Bike Smart and helmet safety program • Promote pedestrian and bicycle safety curriculum in PE/Wellness classes. • Work to develop PTA/0 SRTS websites. • Work to promote LHS Marketing transportation and safety class public service announcements • Work on continuing LPS short-term and long-term traffic safety and mitigation design infrastructure improvements and their budget implementation. • Serve as an institutional resource for LPS, Redistricting, School Start Time Change, and Bussing Efficiency Study • Work to further define Coordinator position and program materials. AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Presentation- 75th Anniversary of End of WWII Event PRESENTER: ITEM NUMBER: George Gamota I.8 SUMMARY: An ad-hoc group made of people from Town Organizations (such as Lexington Historical Society, Lexington Veterans Association) as well as some Town Committees (Town Celebrations Committee and Tourism Committee) and other individuals are working together to plan a number of events to be held in 2020 commemorating the 75th anniversary of the ending of WWII focusing on Lexington's role and the people who participated. Mr. George Gamota will be at the meeting to outline the events that are being planned. 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C. 0 =3 -0 CL =3 0 Q� O E O E m Z7; cz Ln LU E a) G� w u E > 4—j 0 �' 4- 0 E ot"D E -0 L 1 0 -0 N C: ca N E E 4� 4� 4� O O U 4� Con O 4-j •_ � II m E O O .� 4-j m V N Q� • - O ca m '0 r) O Q 0 � Ln L � 4-j �=3 E o E 0 mommommm a MEN= E 0 Ln E re +.j 4-j 4-j c: 0 -0 E E C: W 0 bD ra C: C: (D 0 � 0 'Xu �o 0= : Im 0 LU a) to J � c Q) 0 C: (D j Q) u 0 0 (D ukk C: < 0 � U 0 E � u u � w ;S � O Y r I / Iv ��f�yii dfdJ ri%/v�0�N f I�yrf t r Nei u P of �R jinNl/r a fJrr�9vin��� »w', ar " rr, �� f �d�J� (� k r ot op P i ��it I'f ,...J i' ➢Iryl� f!ylx �w,'�, ,,, ,,,. �� „�rmm✓�'�„�vu9Pr� i;6U��'r IY f � +n��iiyy p m� AI <<I�(�f�� � r ,�y fir( � ww✓ a i II V f k, w 1 vu1rP eVI 41f .1 � 1lr r l r�� rr �jti y n i AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Award Bid for Munroe Building Lease PRESENTER: ITEM NUMBER: Jim Malloy, Town Manager I.9 SUMMARY: The Town advertised for a R F P (attached) for a long-term lease on the Munroe Building and there was one bidder(Munroe Center for the Arts). The R F P had a formal rating system for rating the bids, which is going to be done over the weekend by Joe Pato, Jill Hai and the Town Manager. The Town received one bid from the Munroe Center for the Arts which complied with all of the bid requirements. Their bid was rated as a 2.8 on a 0-3 scale which brings it between "Advantageous" and "Highly Advantageous". The price proposal is $2,000 per month. SUGGESTED MOTION: Move to award the bid to Munroe Center for the Arts as per their bid and authorize the Town Manager to finalize and execute the lease agreement. FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 8:5 0 p.m. ATTACHMENTS: Description Type Town of Lexington Request for Proposals ("RFP") for Lease of Space at Munroe School Building Sealed written proposals will be received by the Town of Lexington(the "Town") through its Town Manager at Town Hall, 1625 Massachusetts Avenue, Lexington, MA 02420 until 10:00 AM on December 13, 2019, at which time they will be publicly opened, to renovate, establish and operate a non-profit art center at the following property(the "Property"): Munroe School Building at 1403 Massachusetts Avenue All proposals must be sealed and conspicuously marked"Munroe School Building Lease Proposal". Complete instructions and requirements for this RFP may be obtained from the Purchasing Office through the Assistant Town Manager for Finance, 1625 Massachusetts Avenue, Lexington, MA 02420 or via email by contacting Carolyn Kosnoff, Assistant Town Manager for Finance at ckosnoffklexinetonma.gov. The Town shall consider the qualifications of all proposals, prior to awarding a lease. Said lease shall be subject to the provisions of MGL, Ch. 30B. The Town of Lexington reserves the right to reject any or all proposals, to waive minor informalities, and to make the award as may be determined in the Town's best interest. The Town makes no representations or warranties, express or implied, as to the accuracy and/or completeness of the information provided in this RFP. Carolyn Kosnoff, Assistant Town Manager for Finance Acting Purchasing Officer 1 General Statement The Town of Lexington is seeking proposals to establish and operate a non-profit art center at the Munroe School Building located at 1403 Massachusetts Avenue, Lexington, MA (the "Property"). The successful proposer will be selected on the basis of his/her responses to information contained within this RFP. A ten-year lease will be offered commencing on or about June 30, 2020 and expiring June 30, 2030 with an option at the Town's discretion to provide two 10-year extensions to the lease. The terms under which a lease will be granted are included in both the RFP and lease. All conditions contained within these documents regardless of whether they are noted only in one or the other will be binding on the lessee. Therefore, they should be read carefully prior to submitting a proposal. Proposals will be accepted until 10:00 AM on December 13, 2019. All proposals should consist of separate price and non-price information. The non-price proposal should include all information requested by the RFP. The price proposal should include only the first year basic rent. The price proposal must be sealed in an envelope separate from the non-price proposal and so noted. It will be opened separately from the non-price proposal. The Town will conduct tours of the Property to acquaint individuals with existing conditions. It is very important that prospective bidders view the Property prior to submitting a proposal. No exceptions will be made for errors or omissions resulting from proposers not being familiar with existing conditions. The tour of the Property will be held on November 22, 2019 at 10 AM. 2 General Conditions and Instructions for Proposals 1. It will be the sole responsibility of the proposer to have its proposal delivered to the Office of the Assistant Town Manager for Finance on or before 10:00 AM on December 13, 2019. 2. The signed proposal shall be considered an offer on the part of the proposer and deemed accepted upon approval by the Assistant Town Manager for Finance. In the case of default on the part of a proposer after such acceptance by the Assistant Town Manager for Finance, the Town may take such action, as it deems appropriate, including but not limited to retaining the proposal guarantee as liquidated damages. 3. Proposal declaration and certification shall contain the following details: a. If proposer is an individual, the signature shall be witnessed by two (2) other individuals. b. If the proposer is a partnership, the word, "Partner" shall appear after the signature of the partners. All partners shall sign the proposal and signatures shall be witnessed by two (2) other individuals. c. If the proposer is a corporation, the signature of the officer(s) or individual(s) authorized by its bylaws to sign such documents is required, attested to by the corporate secretary and with an official corporate seal affixed thereto. d. A list of all principals and beneficial owners on the Exhibit C - Formal Identification Page 4. The Town of Lexington shall not be responsible for oral interpretations given by any Town personnel or representatives or others. The issuance of a written addendum is the only official method whereby interpretations, clarification or additional information can be given. 5. All expenses for making this proposal to the Town are to be borne by the proposer. The Town is not liable for any costs associated with this proposal and/or any resulting agreement. 6. Pre-award negotiations may be conducted with the selected proposer. 7. No contract or lease shall be created merely by the selection of a preferred proposal. Indemnity and Liability Coverage The proposer will be required to execute an extensive indemnification clause which will require among other things, that the Town be fully indemnified, defended and held harmless by the proposer against any and all claims, suits, actions, damages, etc. arising during the term of this agreement for any bodily injury, loss of life, damage to property, etc. The proposer will be 3 required to provide a bond or such other security as the Assistant Town Manager for Finance shall deem satisfactory in the amount of$50,000 to cover unpaid rent and outstanding bills in the event of Lessee's default. The successful proposer further will be required to maintain comprehensive general liability insurance naming the Town as an additional insured in the minimum amount of$1,000,000 combined bodily injury liability and personal injury liability and a total of$500,000 for property damage liability. Said coverage shall carry product liability coverage in the amount of$1,000,000 and umbrella liability insurance policy of$1,000,000 in excess of the aforementioned bodily injury policy. The foregoing reflects some of the requirements of the Town's indemnification and liability coverage. The successful bidder hereby agrees to indemnify and hold harmless the Town, its agents, officers and employees, free and harmless of any claim, liability, cause of action, expense or charge of whatever kind of nature and against all loss or liability which may arise out of or be connected with the performance of successful bidder's duty hereunder and shall defend any suit, claims or causes of action brought by or on behalf of any person arising out of the performance of such duties and pay all costs and expenses in connection with or as a consequence of said suit including attorney's fees in connection therewith. Worker's Compensation The successful bidder shall maintain Worker's Compensation Insurance at a minimum of the statutory limits as promulgated by the Commonwealth of Massachusetts and shall provide written proof of such coverage to the Town Manager's Office annually or as requested. Insurance Requirements Comprehensive general liability insurance naming the Town as an additional insured, carrying product liability insurance as follows: Bodily Injury Minimum $1,000,000 Personal Injury Minimum $1,000,000 Property Damage Minimum $ 5001000 Worker's Compensation Statutory Minimum Additional Umbrella Insurance Minimum $1,000,000 For purposes of this form, "Proposer" means any person, firm, corporation, partnership,joint venture or other entity, who or which owns or controls 5% or more of the voting stock(or any equivalent voting interest of partnership or venture) of proposer. Specifications The specifications in Items (1) through (5)below should be responded to in sufficient detail for the proposal to be evaluated as per the evaluation criteria in Proposal Evaluation Part II. 1. The proposer shall identify the number of years they have been in business. 4 2. The proposer shall indicate the operating times and hours of service throughout the year. 3. The proposer shall identify the type of business proposed and how it will comply with the restrictions attached as Exhibit A. 4. The successful proposer, at his/her expense shall secure all the necessary licenses, which may include but are not limited to, alcohol licensing, common victualler's license, all Board of Health licenses and any other building permits or licenses as may be required. 5. All of the specifications, terms and conditions as specified in all the documents that constitute this Request for Proposals shall be applicable to any resulting lease agreement. 6. The hours of operation of the Property shall be limited to 7:00 AM to 11:00 PM unless otherwise approved in advance by the Town Manager. 7. The proposer shall provide all equipment essential to perform his/her contractual duties. The Lessee shall provide a list of all these materials to the Town Manager for recording purposes so upon termination of the lease the Lessee shall be entitled to only the equipment on this list. 8. The Lessee shall maintain all sections of the Property allocated to its function including all maintenance of same Property areas. 9. Advertising signs shall not be displayed except for identification signs, subject to the Town's approval. 10. The Lessee shall not permit garbage and other refuse to accumulate or gather in or about the building areas occupied by the Lessee except in suitable covered garbage receptacles, which will be provided by the Lessee. 11. The Lessee shall not permit any agent or employee to remain in the locations occupied by the Lessee for the period of time longer than is normally required to secure the premises and to perform minor clerical work after the close of business. 12. Lessee shall be responsible for snow removal from the parking facilities and all walkways. 13. Lessee will pay for all utility costs relating to the Property. 14. The leased premises at the Property contains approximately 20,180 square feet consisting of a former school building. There shall not be any space to be construed as a living space. 15. The Lessee shall at his/her sole expense pay for elective renovations to be made at the Property and only with the written approval of the Town Manager. 16. Rent is due by the I01h of each month. A $50 per day late fee will be assessed for every day after the 101h that rent is not paid. Proposer's Signature: Date: 5 Proposal Evaluation- Part I A key component to the initial evaluation process will be that the proposer shall submit the following criteria to all for proper basis for evaluation. Check Yes or NO for submission of the following. Proposer should also be aware that this listing is subject to alteration. Proposer must answer"Yes" to all items for further consideration. YES NO 1. Signed Statement of Non-Collusion 2. Completion of Formal Identification of Proposal Form 3. Signed Proposer and Insurance Agent Certificate 4. Completion of Proposal Certification 5. Completed Character Qualifications Statement and Explanations if necessary. 6. Sign off on all Specifications and Applicable Addenda and signature. 7. Detailed Plan of Services and Supporting Information 8. Signed Statement of State and Local Tax Payments Proposal Evaluation—Part II As part of the secondary evaluation process, the Town is required to establish certain comparative evaluation criteria. These criteria reflect rating categories which will be used to evaluate each proposal. For each comparative evaluation criteria set forth below, the Town will rate the proposers answer as: H = "Highly Advantageous" A= "Advantageous" N= "Not Advantageous" U= "Unacceptable" The overall composite total of these ratings will be used to judge the proposals deemed to be in the Town's best interest. If the proposal receives an"Unacceptable"rating on any single criterion, the composite rating will also be "Unacceptable". Therefore if an"Unacceptable" rating is received on any one of the detail items listed below, the proposal will not be accepted. The following comparative criteria are being used: 1. Business Experience operating a non-profit art center in Lexington or the suburban Boston area: H = 10+Years A= 6-9 Years N= 3-5 Years U= Less than 3 Years 2. Proposed Hours of Operations 6 H =All year, a minimum of 6 days per week, 15 hours per day. A= Open Apr—Nov, a minimum of 6 days/week and 10 hours/day. N= Open Apr—Nov, a minimum of 6 days/week less than 10 hours/day. U= Limited Hours and operating days 3. Proposed Business Type and Service Delivery H =Full utilization of the building as a non-profit art center with year-long programming for music, dance, theater and visual arts in the Town of Lexington. A= Limited utilization of the building compliant with the use as a non-profit art center in other communities. N= Limited utilization of the building minimally compliant with limited experience as a non-profit art center in other communities. U= Limited utilization of the building and not meeting the requirements. 4. Experience with managing teaching staff and oversight of students H = 5+Years A= 3 to 5 Years N= Less than 3 Years U=No prior experience 5. Agreement to provide performances, gallery shows for local artists and a minimum of 10 free community events per year H =Meet all three requirements A=Meets 2 of the three requirements N=Meets 1 of the three requirements U=Does not meet any of the three requirements 6. Agreement to all the Property to be used by the Town for meetings of Lexington's Boards and Committees without cost H =Bidder agrees to this requirement A=Bidder agrees to allow this use in a limited manner N=Bidder agrees to allow this use for a charge U=Bidder does not agree 7 The degree to which the proposer can demonstrate a commitment to diversity, equity and inclusion, consistent with the values of the Town of Lexington. H =Bidder demonstrates a broad commitment to diversity, equity and inclusion A=Bidder demonstrates some commitment to diversity, equity and inclusion N=Bidder demonstrates a minimal commitment to diversity, equity and inclusion U=Bidder demonstrates no commitment to diversity, equity and inclusion 7 Proposal Evaluation—Part III The Town requests the proposer specify a monthly rental fee for the first year of the contract. Those proposals containing the highest fee paid to the Town during this period will be considered highly advantageous. The Town has established no minimum monthly rent. Rent is due by the loth of each month. If rent is not paid by the loth of each month a $SO late fee will be added each subsequent day after the l Oth until rent is received. The Town seeks to encourage investment in the Property to improve the overall appearance and attractiveness to the community and will consider proposals containing a capital investment in the leased premises as highly advantageous 8 Proposal Evaluation—Part IV All proposers must submit separate price and non-price proposals. The price proposal containing the monthly rental fee must be sealed in a separate envelope and marked"Price Proposal". The price proposal will not be opened until the Town has evaluated all other materials. The non- price or technical proposal is an important element in selecting a vendor. This process is structured to provide an orderly and fair comparison of proposals. 9 Exhibit A Restrictions The Property shall only be used for the following purposes by a non-profit arts center: • Arts Center • Gallery Space • Theater Space • Studio Space • Classes • Public Performances • Community Meeting Space • Education in the Arts • Subject to the terms of the lease, sub-tenants that are for-profit art-related uses that do not exceed 25% of the floor space of the building. The Town will not lease the property for the following purposes: • For a for-profit commercial business • Restaurant/bar • Residential • Other Commercial Uses • Industrial Uses • Any Other Uses not allowed under the Town's Zoning for the district 10 Exhibit B—Anti-Collusion Statement The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification the word "person" shall mean any natural person, business, partnership, corporation, union, committee, club or other organization, entity, or group of individuals. Company: Address: City/State: zip: Telephone: Email: Date of Proposal: Proposer must sign the following in ink: By: Please print name and title of signatory below: Name: Title: Name, signature and company must be the same on each of the following pages of the proposal as they appear above. Indicate which type of organization below: Individual Partnership Corporation Other 11 Exhibit C —Formal Identification of Proposer To be completed by all principals and beneficial holders of 5% or more of the stock or other ownership interest of this proposal shall include individuals, corporations, partnerships,joint ventures and unincorporated associations List all holders of 5% of more ownership interest as specified above and if any of the names are of organizations or corporations furnish complete information for ownership interests that hold more than 5% interest in each of the said organizations. Name Address Percent 12 Exhibit D—Insurance Agent Statement (To be filled out with Proposal) We understand the insurance requirements of the proposal and that evidence of insurability may be required within ten(10) days after notification of award. Proposer Insurance Agent Signature Signature Date Date 13 Exhibit E —Declaration and Certification The undersigned, as proposer declares under oath that no other person has any interest in this proposal or in any resulting agreement to which this proposal pertains, that this proposal is not made with connection or agreement with any other person(s) and that this proposal is in every respect fair, in good faith, without collusion or fraud. The proposer further declares that he has complied in every respect with all the instructions to proposer, that he has read all addenda, if any issued prior to the opening of proposals and that he has satisfied himself fully relative to all matters and conditions with respect to the general conditions of the agreement and all relevant information to which this proposal pertains. The proposer proposes and agrees if this proposal is accepted to execute the attached lease agreement found in Exhibit F establishing a formal contractual relationship between the bidder and the Town of Lexington for the performance of all requirements to which this proposal pertains. The proposer further agrees, if this proposal is accepted to post a $1,000 cash surety with the Town of Lexington which will be refunded only upon the execution of said contract documents. Estimated date of award is on or about December 15, 2019 with contract to commence on or about July 1, 2020. The proposer certifies that this proposal is based upon all conditions as listed in the Request for Proposals and that he has made no changes in the proposal specification documents as developed by the Town. The proposer further proposes and agrees, if his proposal is accepted to execute the lease agreement (Exhibit J) for the purpose of establishing a contractual relationship between him and the Town of Lexington for the performance of all requirements to which this proposal pertains. Declaration and Certification Submitted by: Name of firm, corporation or individual Address of firm, corporation or individual By: Name Title If corporation— seal and Secretary's Signature 14 If individual, sole owner or partnership—Two (2) witnesses required Witness Name Address Witness Name Address State of County of Before me, personally appeared, to me well known and know to be the person(s) described herein and who executed the foregoing certification and acknowledge to and before me that executed said certification for the purposes therein expressed. Witness my hand and official seal, this day of 2019 Notary Seal: Notary Signature Commission Expires: 15 Exhibit F—Addenda The proposer states that the proposal is based upon the Request for Proposals and addenda, if any, listed by number as follows: Addenda, if any: Number and Date Issued Number and Date Issued Number and Date Issued Number and Date Issued Number and Date Issued Number and Date Issued Number and Date Issued Number and Date Issued Number and Date Issued 16 Exhibit G Rent Proposal I, propose to pay the Town of Lexington the following amount for monthly rent during the first year of the lease for the leased premises: A. Gross Monthly Rent: $ 17 Exhibit H State Tax Certification Pursuant to Chapter 62C of the Massachusetts General Laws, I certify under the penalties of perjury that the undersigned Proposer complied with all laws of the Commonwealth of Massachusetts relating to taxes. By: * Signature of individual or Corporate Officer Corporate Name (Mandatory) (Mandatory, if applicable) "Social Social Security# or Federal Identification# * Approval of a contract or other agreement will not be granted unless this certification clause is signed by the applicant. ** Your Social Security Number will be furnished to the Massachusetts Department of Revenue to determine whether you have met tax filing or tax payment obligations. Providers who fail to correct their non-filing or delinquency will not have a contract or other agreement issued, renewed, or extended. This request is made under the authority of Mass. G.L. 62C s. 49A. 18 Exhibit I Transaction with a Public Agency Concerning Real Property, M.G.L. c. 7C, § 38 (formerly M.G.L. c. 7, & 40J) The undersigned party to a real property transaction with a public agency hereby discloses and certifies,under pains and penalties of perjury,the following information as required by law: (1) REAL PROPERTY: Munroe School Building at 1403 Massachusetts Avenue_ (2) TYPE OF TRANSACTION, AGREEMENT, or DOCUMENT: Lease (3) PUBLIC AGENCY PARTICIPATING in TRANSACTION: Town of Lexington (4) DISCLOSING PARTY'S NAME AND TYPE OF ENTITY (IF NOT AN INDIVIDUAL): (5) ROLE OF DISCLOSING PARTY (Check appropriate role): Lessor/Landlord x Lessee/Tenant Seller/Grantor Buyer/Grantee Other(Please describe): (6) The names and addresses of all persons and individuals who have or will have a direct or indirect beneficial interest in the real property excluding only (1) a stockholder of a corporation the stock of which is listed for sale to the general public with the securities and exchange commission, if such stockholder holds less than ten per cent of the outstanding stock entitled to vote at the annual meeting of such corporation or (2) an owner of a time share that has an interest in a leasehold condominium meeting all of the conditions specified in M.G.L. c. 7C, s. 38, are hereby disclosed as follows (attach additional pages if necessary): NAME RESIDENCE (7) None of the above- named persons is an employee of the Division of Capital Asset Management and Maintenance or an official elected to public office in the Commonwealth of Massachusetts,except as listed below(insert"none"if none): 19 (8) The individual signing this statement on behalf of the above-named party acknowledges that he/she has read the following provisions of Chapter 7C, Section 38 (formerly Chapter 7, Section 40J) of the General Laws of Massachusetts: No agreement to rent or to sell real property to or to rent or purchase real property from a public agency, and no renewal or extension of such agreement, shall be valid and no payment shall be made to the lessor or seller of such property unless a statement, signed, under the penalties of perjury, has been filed by the lessor, lessee, seller or purchaser, and in the case of a corporation by a duly authorized officer thereof giving the true names and addresses of all persons who have or will have a direct or indirect beneficial interest in said property with the commissioner of capital asset management and maintenance. The provisions of this section shall not apply to any stockholder of a corporation the stock of which is listed for sale to the general public with the Securities and Exchange Commission, if such stockholder holds less than ten per cent of the outstanding stock entitled to vote at the annual meeting of such corporation. In the case of an agreement to rent property from a public agency where the lessee's interest is held by the organization of unit owners of a leasehold condominium created under chapter one hundred and eighty-three A, and time- shares are created in the leasehold condominium under chapter one hundred and eighty-three B, the provisions of this section shall not apply to an owner of a time- share in the leasehold condominium who (i) acquires the time-share on or after a bona fide arm- length transfer of such time-share made after the rental agreement with the public agency is executed and (ii) who holds less than three percent of the votes entitled to vote at the annual meeting of such organization of unit owners. A disclosure statement shall also be made in writing, under penalty of perjury, during the term of a rental agreement in case of any change of interest in such property, as provided for above, within thirty days of such change. Any official elected to public office in the commonwealth, or any employee of the division of capital asset management and maintenance disclosing beneficial interest in peal property pursuant to this section, shall identify his position as part of the disclosure statement. The commissioner shall notify the state ethics commission of such naives, and shall make copies of any and all disclosure statements received available to the state ethics commission upon request. The commissioner shall keep a copy of each disclosure statement received available for public inspection during regular business hours. (9) This Disclosure Statement is hereby signed under penalties of perjury. PRINT NAME OF DISCLOSING PARTY(from section 4, above) AUTHORIZED SIGNATURE of DISLCOSING PARTY DATE (MM/DD/YYYY) PRINT NAME & TITLE of AUTHORIZED SIGNER 20 EXHIBIT J FORM OF LEASE LEASE AGREEMENT BETWEEN THE TOWN OF LEXINGTON AND [ ] This Lease Agreement (this "Lease") is entered into as of this day of 20 by and between the Town of Lexington, Massachusetts, a municipal corporation with a mailing address of 1625 Massachusetts Avenue, Lexington, Massachusetts 02420 ("Landlord"), and [ I ("Tenant"). Whereas, Landlord owns that certain property located at 1403 Massachusetts Avenue, Lexington, Massachusetts (the "Premises"), including the building known as the Munroe School (the "Munroe School"); and Whereas, Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord, the Premises, for the operation and provision of a studio space, classes, public performances, community meeting space and other such uses as may be permitted hereunder, pursuant to the terms and provisions of this Lease. Now therefore, in consideration of the foregoing and the mutual promises herein contained, Landlord and Tenant hereby agree as follows: 1. Premises; Permitted Uses. (a) During the Term (as defined in Section 2 below), Tenant shall be entitled to the use and occupancy of the Premises in accordance with the terms of this Lease. A description and location of the Premises is attached hereto as Exhibit A. (b) Tenant and its employees, agents, representatives, and invitees may use the Premises for the following purposes, subject to the terms of this Lease: (1) Public events, including meetings that are open to the public, staged productions, fundraising and similar events; (11) Office uses; (111) Classroom instruction and studio uses; and (iv) Other lawful uses as may be permitted by Landlord hereunder. (c) Notwithstanding anything set forth herein to the contrary, at no time shall the Premises be used for purposes other than those approved by the Town Manager of the Town of Lexington. (d) At no time shall alcoholic beverages be served or sold for consumption on the Premises without a license by the Lexington Board of Selectmen. f A0640494.1} Draft 11/5/2 019 Page 1 (e) Tenant shall make facilities within the Munroe School available for municipal and public service uses, including but not limited to meetings of the Town of Lexington's boards and committees, as requested by Landlord and without cost to Landlord, pursuant to a schedule to be arranged from time to time between Landlord and Tenant, upon reasonable advance notice and with reasonable efforts to minimize interference with the Tenant's programs (collectively, "Municipal Co-Use"). (f) Tenant has demonstrated, to the satisfaction of Landlord, that it is a civic, charitable, cultural, historical or educational organization. Tenant shall maintain such status throughout the Term. (g) Tenant hereby accepts the Premises in its present condition, "as is", without any representations or warranties of any kind. 2. Term and Termination. The term of this Lease (the "Term") shall commence on July 1, 2020 (the "Commencement Date") and, unless sooner terminated, shall terminate on June 30, 2030 (the "Expiration Date"). Notwithstanding anything set forth herein to the contrary, (a) either party hereto may terminate this Lease for any cause prior to the Expiration Date upon one- hundred and twenty (120) days written notice to the other party and (b) Tenant may terminate this Lease immediately in the event of fire or other casualty to the Premises which causes the Munroe School to become unusable. [If no termination notice has been given under the preceding paragraph, the term of this Lease may be extended by Landlord for two terms up to ten (10) additional years each, so long as Landlord delivers written notice of each extension to Tenant at least thirty(30) days before each applicable Expiration Date.] Base Rent. Tenant shall pay to Landlord base rent ("Base Rent") of[$ ] per year, payable on the first day of each month in monthly installments of[$ ] (monthly installments for any partial month in the Term shall be paid in advance and prorated). [In February 2017, the Town of Lexington issued a level debt service bond for a term of five (5) years for this project. The parties hereby agree that, effective with the monthly Base Rent payments, Tenant agrees to pay an additional amount of$2,747.66 (for a total of[$164,859.60 including principal and interest]) for a period of[60] months, beginning July 1, 2017 and ending June 1, 2022, to cover the Landlord's annual debt service for this project. 2. Hours of Operation. For the uses permitted hereunder, Tenant and its employees, agents, representatives, and invitees may use the Premises from 7:00 a.m. to 11:00 p.m. daily. 3. Maintenance, Repair and Cleaning. Tenant agrees, at its sole cost and expense, to maintain, repair and clean the Premises and to keep the Premises in good order, repair and condition. This obligation shall include but is not limited to: (a) Arranging and paying for the supply of all heat, water, gas and utilities necessary for the operation of the Premises (Landlord shall not be required to furnish to Tenant any facilities or services of any kind whatsoever during the Term; Landlord makes no f A0640494.1} Draft 11/5/2 019 Page 2 representation or warranty that existing sources of supply, distribution points or utilities are adequate or sufficient for Tenant's uses); (b) Maintaining and repairing the Munroe School plumbing, interior walls, floors, and ceilings subject to wear and tear in the ordinary course of use[; provided it being acknowledged that Tenant is not obligated to make structural repairs or replacements or major capital repairs]; (c) Arranging for maintenance services, including but not limited to the cleaning of floors, walls and internal fixtures, rubbish removal, snow removal, pest control and kitchen and bathroom cleaning; and (d) Providing for building safety and security, including but not limited to regular checking and repair or replacement as necessary of locks and other security devices and fire alarm systems; and (e) Landscaping to the entire site except the playground area; and (f) Snow removal from walkways and driveways. As provided herein, Tenant shall have the right, at its own expense, to make tenant improvements to the Premises, including but not limited to the replacement of floor treatments and appliances as may be desired by Tenant. Any work performed by Tenant during the Term shall be completed in accordance with all necessary permits and approvals and shall require the prior written approval of Landlord in its sole discretion. Landlord has the right, but not the responsibility unless specifically provided otherwise herein, to repair, renovate or alter the Premises during the Term. Any such repairs, renovations or alterations shall be done at Landlord's sole cost and expense, and Landlord agrees to work with Tenant to minimize the impact of any such repairs, renovations or alterations on Tenant's daily operations. Tenant may request a renegotiation of monthly Base Rent if the renovations have a measurable financial impact on Tenant's operations. Landlord shall be entitled to inspect the Premises periodically during the Term upon reasonable prior notice to Tenant. Landlord agrees to exercise its rights under this paragraph in such a manner as to prevent, or minimize to the extent practicable, any unreasonable interference with Tenant's use of the Premises. If, in Landlord's reasonable discretion, Landlord determines that Tenant has failed to keep the Premises in an acceptable state of repair, maintenance and cleanliness, Landlord may(a) require Tenant to remedy any health and/or safety issues within ninety(90) days after delivering notice of those issues to Tenant, (b) require Tenant to address any other issues as soon as possible, or (c)perform or cause to be performed such repair, cleaning, maintenance or replacement as Landlord deems necessary, [provided that it being acknowledged that Tenant is not obligated to make structural repairs or replacements or major capital repairs]. Tenant shall reimburse Landlord for the cost of any such repair, cleaning, maintenance or replacement f A0640494.1} Draft 11/5/2 019 Page 3 consistent with the foregoing within thirty(30) days of receipt of a written invoice from Landlord. Notwithstanding anything set forth in this Section 5, Tenant Landlord shall not be responsible for the upkeep, repair and/or maintenance of the playground area and the recreation field in the rear of the Premises and the parking lot. Rather, Landlord shall be responsible for this upkeep, repair and maintenance. 4. Insurance. Tenant shall carry, throughout the Term and at its sole cost and expense, all of the insurance coverage listed below: (a) Commercial general liability insurance, written on an occurrence basis and including contractual liability coverage to cover any liabilities assumed under this Lease, for bodily or personal injury or death of persons or damage to property on or about the Premises. The amount of such liability insurance shall be not less than Two Million Dollars ($2,000,000)per occurrence. (b) Worker's compensation insurance as required by the laws of the Commonwealth of Massachusetts covering persons employed by Tenant. (c) During the period of any construction hereunder conducted by Tenant, Tenant shall keep in full force and effect "Builder's All Risk" insurance against loss or damage on a completed value non-reporting basis from such hazards and in such amounts as Landlord may reasonably require. (d) Business automobile liability insurance covering owned, non-owned and hired vehicles with a limit for bodily injury and property damage of not less than One Million Dollars ($1,000,000) per accident. (e) Tenant acknowledges that all of the personal property including equipment, inventory, trade fixtures, and other personal property owned by Tenant, or any personal property of the Public Arts Purposes Programs operating thereunder, shall be at the sole risk and expense of Tenant or the Public Arts Purposes Programs. Landlord shall have no responsibility for such property. Landlord shall carry property insurance for the Munroe School building during the Term. The minimum coverage stated in this Section 6 may be reconsidered if such an adjustment is reasonably necessary to reflect inflation or changes in the nature or degree of risks insured or to protect against judgments from time to time being awarded in Massachusetts for injury and death. All insurance provided for in this Section 6 shall be effected under valid and enforceable policies, issued by insurers of recognized responsibility licensed and doing business in Massachusetts and having a so-called Best's Rating of"A" or better, or, if such rating is no longer issued, an equal or better rating by a successor insurance carrier rating service reasonably acceptable to Landlord. All such insurance shall name Landlord as an additional f A0640494.1} Draft 11/5/2 019 Page 4 insured. Any deductible amounts under any insurance policies required hereunder shall not exceed Ten Thousand Dollars ($10,000). Upon the execution of this Lease, and thereafter not less than twenty (20) days prior to the expiration dates from time to time of the policies required pursuant to this Section 6, binders of such insurance or, upon written request of Landlord, duplicate originals of the policies, shall be delivered by Tenant to Landlord. In addition, evidence of the payment of all premiums of such policies will be delivered to Landlord. All commercial general liability and casualty policies maintained by Tenant will be written as primary policies, not contributing with and not in excess of coverage that Landlord may carry. If Tenant fails to maintain any of the insurance required hereunder, which failure continues for ten (10) days after Landlord gives notice to Tenant of such failure, then Landlord, at its election, may procure such insurance as may be necessary to comply with the above requirements (but shall not be obligated to procure the same), and Tenant shall repay to Landlord the cost of such insurance. 5. Indemnification. Tenant hereby indemnifies and holds Landlord harmless from any injury, loss, claim or damage to any person or property resulting from (a) any use, non-use, possession, occupation, condition, operation, maintenance or management of the Premises or any part thereof during the Term and (b) any material failure on the part of Tenant to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Lease on its part to be performed or complied with, except that Tenant will not be required to indemnify and hold harmless Landlord from any injury, loss, claim or damage that is caused by the gross negligence or willful misconduct of Landlord (but only to the extent that such loss, claim or damage is caused by Landlord's gross negligence or willful misconduct). If Landlord obtains separate counsel in enforcing its rights hereunder due to the requirements of M.G.L. C. 268A or due to reasonable concerns that its interests and that of Tenant may be adverse or that counsel provided by Tenant may have a conflict in interest or is not providing effective representation of Landlord, then the reasonable expenses of such separate counsel shall be at Tenant's expense. The foregoing express obligation of indemnification shall not be construed to negate or abridge any other obligation of indemnification running to Landlord which would exist at common law or under any other provision of this Lease, and the extent of the obligation of indemnification shall not be limited by any provision of insurance undertaken in accordance with this Section 7. This Lease is made on the express condition that Landlord shall not be liable for, or suffer loss by reason of, any damage or injury to any property, fixtures, buildings or other improvements or to any person or persons at any time on the Premises, specifically including any damage or injury related to the Premises, unless caused by the gross negligence or willful misconduct of Landlord. The provisions of this Section 7 shall survive the termination or expiration of this Lease. 6. Other Conditions. (a) Tenant shall provide Landlord with a copy of its annual financial report no later than ninety(90) days after the close of its fiscal year on December 31. Tenant shall also f A0640494.1} Draft 11/5/2 019 Page 5 provide annually, on July 1 st of each year of the Term, as extended, copies of all subleases, licenses or assignments, if any, permitted hereunder. (b) Tenant shall pay all real estate taxes or betterment assessments assessed against the Premises during the Term and shall hold harmless Landlord from any liability for any such amounts. (c) Subject to ordinary wear and tear, Tenant agrees not to harm the Premises, or commit or permit waste, or create any nuisance or disturbance, or make any use of the Premises other than the permitted uses as set forth in Section 1 hereof. (d) During the Term, Tenant shall comply in all material respects, at its own cost and expense, with (a) all applicable laws, by-laws, ordinances, codes, rules, regulations, orders, and other lawful requirements of the governmental bodies having jurisdiction over the Premises or Tenant, including without limitation, the Zoning Bylaw and other ordinances of the Town of Lexington, and (b) the requirements of all policies of public liability, fire and all other types of insurance at any time in force with respect to the Premises. 7. Force Mai eure. In no event shall Landlord be liable Tenant Center for any indirect or consequential damages to Tenant if Tenant is delayed in or prevented from using the Premises as permitted under this Lease by reason of any cause beyond Landlord's reasonable control, including, without limitation, acts of God, strikes, lockouts, labor troubles, failure of power or other utility services, riots, insurrection, war, or the requirements of any regulations of general application (herein"Force Maj eure Events"). The failure of either party hereto to perform its obligations, covenants and agreements hereunder shall be excused if the party failing to perform is unable to so perform by reason of Force Maj eure Events, provided, however, Tenant shall not be excused from any monetary obligations hereunder by reason of any Force Maj eure Events unless such Force Ma j eure Events result in Tenant being prevented from using all or a material part of the Premises as permitted under this Lease, and provided further, however, that in each such instance of inability of either party to perform, the non-performing party shall exercise due diligence to eliminate the cause of such inability to perform, to secure alternate sources of supply and the like. f A0640494.1} Draft 11/5/2 019 Page 6 8. Non-Assignment. Tenant shall not assign or otherwise transfer this Lease or any interest in this Lease or the Premises without the express written consent of Landlord, which consent may be withheld in Landlord's sole discretion. 9. Surrender and Holdover. Tenant shall on the last day of the Term, or upon any earlier termination of this Lease, (a) quit and peacefully surrender and deliver up the Premises to the possession and use of Landlord without delay and in good order, condition and repair, including any fixtures and/or improvements installed by Tenant therein. The Premises shall be surrendered free and clear of all liens and encumbrances other than those existing on the Commencement Date and those permitted under this Lease or created or suffered by Landlord. Upon or at any time after the expiration or earlier termination of this Lease, Landlord shall have, hold and enjoy the Premises and the right to receive all income from the same. Tenant shall remove from the Premises all personal property within thirty (30) days after the termination of this Lease and shall repair at Tenant's sole cost any damage to the Premises caused by such removal, unless Landlord permits such property to remain. If Tenant or any party claiming by, through or under Tenant retains possession of the Premises or any part thereof after the expiration or earlier termination of this Lease, then Landlord may, at its option, serve written notice upon Tenant that such holding over constitutes (1) an Event of Default under the Lease, or(11) a month-to-month tenancy, upon the terms and conditions set forth in this Lease, or(111) the creation of a tenancy-at-sufferance, in any case upon the terms and conditions set forth in this Lease. Tenant shall also pay to Landlord all damages actually sustained by Landlord resulting from retention of possession by Tenant. The provisions of this paragraph shall not constitute a waiver by Landlord of any right of re-entry as set forth in this Lease, nor shall receipt of any Base Rent or any other act in apparent affirmation of Tenant's holdover operate as a waiver of Landlord's right to terminate this Lease for a breach of any of the terms, covenants, or obligations herein on Tenant's part to be performed. Any personal property or equipment of Tenant not removed within thirty(30) days following the expiration of this Lease shall, at Landlord's option, become the property of Landlord. 10. Default. Each of the following events shall be deemed an"Event of Default"hereunder: (a) If Tenant shall fail to pay, as and when due, any payment of the Base Rent or other sums payable under this Lease and such failure shall continue for a period of fifteen (15) days after notice from Landlord to Tenant; (b) If Tenant shall fail to perform or comply with any of the other agreements, terms, covenants or conditions in this Lease for a period of thirty(30) days after notice from Landlord to Tenant specifying the items in default, or in the case of a default or a contingency which cannot with due diligence be cured within such thirty(30) day period, for such additional time reasonably necessary provided Tenant commences to cure the same within such 30-day period and thereafter prosecutes the curing of such default with diligence; (c) If Tenant shall initiate the appointment of a receiver or Tenant shall make an assignment for the benefit of creditors, or Tenant shall initiate voluntary proceedings f A0640494.1} Draft 11/5/2 019 Page 7 under any bankruptcy or insolvency law or law for the relief of debtors, or if there shall be initiated against Tenant any such proceedings which are not dismissed or stayed on appeal or otherwise within ninety(90) days, or if, within ninety(90) days after the expiration of any such stay, such appointment shall not be vacated or stayed on appeal; (d) If Tenant vacates or abandons the Premises for a period of more than forty-five (45) consecutive days;provided, however, that Tenant shall not be deemed to have vacated or abandoned the Premises with respect to any period during which all or any portion of the Premises may be vacant as a result of or in connection with work being done to repair or restore the Premises in accordance with the terms hereof; (e) Tenant makes any assignment or transfer of its rights hereunder in violation of this Lease; or (f) Tenant violates any term of this Lease beyond the applicable grace and cure periods. 11. Default Remedies. (a) Termination. Upon an Event of Default, Landlord at any time thereafter may give written notice to Tenant specifying such Event or Events of Default and stating that this Lease and the Term hereby demised shall expire and terminate on the date specified in such notice, which shall be at least ten (10) days after the giving of such notice. Upon the date specified in such notice, this Lease and the Term hereby demised and all rights of Tenant under this Lease shall expire and terminate (unless prior to the date specified for termination the Event or Events of Default shall have been cured, in which case this Lease shall remain in full force and effect), and Tenant shall remain liable as hereinafter provided and all improvements shall become the property of Landlord without the necessity of any deed or conveyance from Tenant to Landlord. Tenant agrees upon request of Landlord to immediately execute and deliver to Landlord any deeds, releases or other documents deemed necessary by Landlord to evidence the vesting in Landlord of the ownership of all improvements. Upon such termination, Landlord may re-enter the Premises and dispossess Tenant and anyone claiming by, through or under Tenant by summary proceedings or other lawful process. (b) Landlord's Right to Perform Covenants. (1) Upon an Event of Default, Landlord may, but shall be under no obligation to, cure such default. Landlord may enter upon the Premises (after five (5) days' written notice to Tenant except in the event of emergency) for any such purpose and take all such action thereon as may be necessary. Landlord shall not be liable for inconvenience, annoyance, disturbance or other damage to Tenant or any operator or occupant of the Premises by reason of making such repairs or the performance of any such work or on account of bringing materials, tools, supplies and equipment onto the Premises during the course thereof, and the obligations of Tenant under this Lease shall not be affected thereby. f A0640494.1} Draft 11/5/2 019 Page 8 (11) All reasonable sums so paid by Landlord and all reasonable costs and expenses incurred by Landlord, including reasonable attorneys' fees and expenses, in connection with the performance of any such act shall be paid by Tenant to Landlord within thirty(30) days of receipt of a written invoice from Landlord therefor. If Landlord shall exercise its rights under this Section 13(b) to cure a default of Tenant, Tenant shall not be relieved from the obligation to make such payment or perform such act in the future, and Landlord shall be entitled to exercise any remedy contained in this Lease if Tenant shall fail to pay such obligation to Landlord. All costs incurred by Landlord hereunder shall be presumed to be reasonable in the absence of a showing of bad faith, clear error, or fraud. (c) Injunctive Relief. In the event of any breach or threatened breach by Tenant of any of the agreements, terms, covenants or conditions contained in this Lease, Tenant shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right and remedy allowed at law or in equity or by statute or otherwise as though re- entry, summary proceedings, and other remedies that were not provided for in this Lease. (d) Remedies Cumulative. Each right and remedy provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Landlord of any one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise. 12. Notices. Any notice required or permitted hereunder shall be in writing and shall be hand delivered or sent by registered or certified mail, postage prepaid, return receipt requested, and addressed: If to Landlord, to: Town Manager Town of Lexington 1625 Massachusetts Avenue Lexington, Massachusetts 02420 And if to Tenant to: f A0640494.1} Draft 11/5/2 019 Page 9 13. Locks. Tenant will not change the locks on the Premises nor install any additional locks without, in each instance, first securing the prior written consent of Landlord, not to be unreasonably withheld, provided a set of keys shall be given to Landlord for all such locks. 14. Environmental. "Environmental Laws"means, collectively, any federal, state, or local law, rule or regulation (whether now existing or hereafter enacted or promulgated, as they may be amended from time to time) pertaining to environmental regulations, contamination, clean-up or disclosures, and any judicial or administrative interpretation thereof, including any judicial or administrative orders or judgments, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. ("CERCLA"); the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. ("RCRA"); the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Clean Air Act, 42 U.S.C. H 7401 et seq.; the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq. ("SARA"); the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq. ("TSCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Appx. §§ 1801 et seq.; the Massachusetts Hazardous Waste Management Act, Mass. Gen. L. c. 21 C §§ 1 et seq.; the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Mass. Gen. L. c. 21 E §§ 1 et seq.; the Massachusetts Toxic Use Reduction Act, Mass. Gen. L. c. 211 §§ 1 et seq.; the Underground Storage Tank Petroleum Product Cleanup Fund, Mass. Gen. L. c. 21 J §§ 1 et seq.; or any other applicable federal or state statute or city or county ordinance regulating the generation, storage, containment or disposal of any Hazardous Material (as defined below) or providing for the protection, preservation or enhancement of the natural environment, any rules or regulations promulgated pursuant to any of the foregoing statutes or ordinances, including but not limited to laws relating to groundwater and surface water pollution, air pollution, transportation, storage and disposal of oil and hazardous wastes, substances and materials, stormwater drainage, and underground and above ground storage tanks; and any amendments, modifications or supplements of any such statutes, ordinances, rules and regulations. Tenant hereby represents, warrants and covenants that, except as may be permitted by and only in accordance with Environmental Laws, Tenant shall not allow any Hazardous Materials (as defined below) to exist or be stored, located, discharged, possessed, managed, processed, or otherwise handled on the Premises, and shall strictly comply with all Environmental Laws affecting the Premises. For purposes of this Lease, "Hazardous Materials" shall mean, but shall not be limited to, any oil, petroleum product and any hazardous or toxic waste or substance, any substance which because of its quantitative concentration, chemical, radioactive, flammable, explosive, infectious or other characteristics, constitutes or may reasonably be expected to constitute or contribute to a danger or hazard to public health, safety or welfare or to the environment, including without limitation any asbestos (whether or not friable) and any asbestos-containing materials, lead paint, waste oils, solvents and chlorinated oils, polychlorinated biphenyls (PCBs), toxic metals, explosives, reactive metals and compounds, pesticides, herbicides, radon gas, urea formaldehyde foam insulation and chemical, biological and radioactive wastes, or any other similar materials which are included under or regulated by any Environmental Law. The agreements, representations and warranties of Tenant in this section shall survive the expiration or earlier termination of this Lease. f A0640494.1} Draft 11/5/2 019 Page 10 15. Miscellaneous. (a) No Waiver. The failure of either Landlord or Tenant to insist upon the strict performance of any provision of this Lease shall not constitute a waiver of compliance with the remaining provisions hereof (b) Sole Agreement. This Lease, and the Request for Proposals to which it is attached, shall constitute the only agreements between Landlord and Tenant relative to the use of the Premises, and no oral statements and no prior written matter not specifically incorporated herein shall be of any force and effect. In entering into this Lease, Tenant relies solely upon the express written representations and agreements contained herein. (c) Amendments. This Lease may be amended only by written agreement of both Landlord and Tenant. (d) Governing Law. This Lease shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. (e) Severability. If any term or provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. (f) Successors and Assigns. The covenants and agreements herein contained shall bind and inure to the benefit of Landlord, its successors and assigns, and Tenant, its successors and assigns. (g) Landlord Liability. Anything contained in this Lease to the contrary notwithstanding, but without limitation of Tenant's equitable rights and remedies, Landlord's liability under this Lease shall be enforceable only out of Landlord's interest in the Premises, and there shall be no other recourse against, or right to seek a deficiency judgment against, Landlord, nor shall there be any personal liability on the part of Landlord or any member of its Board of Selectmen, or any officer or employee of Landlord, with respect to any obligations to be performed hereunder. Without limitation of the foregoing, Landlord shall not be liable for any loss, damage or injury of whatever kind caused by, resulting from, or in connection with (i) the supply or interruption of water, gas, electric current, oil or any other utilities to the Premises, (11) water, rain or snow which may leak or flow from any street, utility line or subsurface area or from any part of the Premises, or(iii) other leakage from pipes, appliances, sewer or plumbing works therein or from any other place; [provided if any of the foregoing render the Premises unusable for its intended uses for more than three (3) consecutive days, there shall be a pro rata abatement of the Base Rent payable hereunder, until the condition is corrected]. In no event shall Landlord be liable to Tenant for any indirect, special or consequential or punitive damages or loss of profits or business income arising out of or in connection with this Lease. f A0640494.1} Draft 11/5/2 019 Page 11 (h) Captions, Exhibits, Gender, Etc. The captions of this Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease nor in any way affect this Lease. The exhibits to this Lease are incorporated into this Lease and are a part hereof. Unless the context clearly requires otherwise, the singular includes the plural, and vice versa, and the masculine, feminine, and neuter adjectives include one another. (1) Time of the Essence. Time shall be of the essence hereof. 0) Request for Consent. Tenant shall reimburse Landlord for its reasonable attorneys' fees and out-of-pocket expenses incurred in connection with any request by Tenant for Landlord's consent hereunder, provided, however, that Landlord shall provide Tenant with an estimate of said fees and/or expenses for Tenant's review and approval prior to incurring such costs. (k) Prevailing Party. In any litigation between the parties arising out of this Lease, or in connection with any other actions taken or notices delivered in relation to a default by any party to this Lease, the non-prevailing party shall pay to the prevailing party the prevailing party's reasonable attorneys' fees and costs incurred in connection with the enforcement of the terms of this Lease. (1) Brokers. Each of Landlord and Tenant warrants and represents to the other that it has had no dealings or negotiations with any broker or agent in connection with this Lease. Each agrees to pay, and shall hold the other harmless and indemnified from and against any and all costs, expenses (including without limitation counsel fees) or liability for any compensation, commissions and charges claimed by any broker or agent resulting from any such dealings by the indemnifying party with respect to this Lease or the negotiation thereof (m) Covenants Running with the Land. Tenant intends, declares, and covenants, on behalf of itself and all future holders of Tenant's interest hereunder, that this Lease and the covenants and restrictions set forth in this Lease regulating and restricting the use, occupancy, and transfer of the Premises (a) shall be and are covenants running with the Premises, encumbering the Premises for the Term of this Lease, binding upon Tenant and Tenant's successors-in-interest; (b) are not merely personal covenants of Tenant; and (c) the benefits shall inure to Landlord. (n) Cumulative Rights. Except as expressly limited by the terms of this Lease, all rights, powers and privileges conferred hereunder shall be cumulative and not restrictive of those provided at law or in equity. (o) Counterparts. This Lease may be executed in counterparts and all such counterparts shall be deemed to be originals and together shall constitute but one and the same instrument. (p) Intent and Effect. The terms and conditions of this Lease have been freely accepted by Tenant and Landlord. f A0640494.1} Draft 11/5/2 019 Page 12 [The remainder of this page has been intentionally left blank.] f A0640494.1} Draft 11/5/2 019 Page 13 IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of this day of 120 TENANT: LANDLORD: I ] Town of Lexington By: By: Name: Name: Title: Title: f A0640494.1} Draft 11/5/2 019 Page 14 EXHIBIT A Premises f A0640494.1} Draft 11/5/2 019 Page 15 m r%4 m m m m m m r4lj m m N N m a m cv r-I O ii ii ii ii 2 m N m m m m m = Q z s U Ln O dA � Q +•' O + Q N Ln N N N N N N N 0 0 0 0 I� I� O 00 V N N � N N i L � � N U V Q LO N U (31 N � L 0 !]A � s O L to W o Q O ,� •� Con O U c2ct �--r 4 . O ton _ .._.,_ c6 •� •O ►-� O ct Ct v U 7� N > cn 4 ct U LL U � U >' LL sn N U 4-a 4-a O U M U to N c }' .. H O J r-I �,' � �'., Ct �U-' Q O Q N N � � � GJ 4 O O a w O H •N O N 01 .O c6 4-4 .. 3 cc cv c�n �n � � oo a C = o U 3 w •— — Ln — ca Q o Q Ln L a 'L 'L 'L 'L 'L 'L 'L to LL O 'L 'L 'L 'L L 'L 'L •i LL oc z u u U U V U U O a oc - ° LL coy AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Tax Bill Insert PRESENTER: ITEM NUMBER: Jim Malloy, Town Manager I.10 SUMMARY: The Property Tax Abatement& Exemption Committee is recommending the attached tax bill insert regarding the To wn's Property Tax Deferral Program, to be included with the 3 rd quarter tax bill. SUGGESTED MOTION: Move to authorize the tax bill insert regarding the tax deferral program to be included in the 3 rd quarter property tax bill mailing. FOLLOW-UP: Tax Collector's Office DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:00 P.m. ATTACHMENTS: Description Type Update to January 2019 Tax Bill Insert for the January 2020 Tax Bill Mailing Attention Seniors! Lexington Property Tax Deferrals are Safe and Affordable If you are a Lexington senior aged 65 or older with a 2018 gross household income of$75,000 or less, you can postpone paying all or any part of your property tax bill and let the value of your house pay the tax bill later. Fiscal Year 2020 deferrals will enjoy a very low simple interest rate of 2.55% Each year's deferral is like an individual loan that doesn't have to be paid back during your lifetime or your qualifying spouse's lifetime unless home ownership is transferred or you choose to pay it off. For detailed qualifying information on the Property Tax Deferral Program and other State and local tax programs call the Assessor's Office at 781-698-4578. A brochure describing all property tax exemptions and deferrals is available at the Assessor's Office,the Lexington Community Center, and online at wwwlexingtonM . Prepared by the Tax Deferral and Exemption Study Committee, December 2019 AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Discuss Formation of Committee for 250th Anniversary of Battle of Lexington PRESENTER: ITEM NUMBER: S uzie Barry, Board of Selectmen I.11 SUMMARY: One of the Board's goals this year is to e s tab lis h a 2 5 0th Anniversary Committee for the Battle of Lexington to celebrate the anniversary in 2025. Attached is a draft of the Committee charge for discussion with approval in a subsequent meeting. SUGGESTED MOTION: None required at this time. FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:05 p.m. ATTACHMENTS: Description Type Lexington 250' Committee (Lex250) Members: 10 Members (5 liaisons, 1 Chair as non-voting facilitator) Appointed by: Board of Selectmen Length of Term: Following completion of all planned activities in 2025. Meeting Times: As determined by the Committee. Provide for a minimum of three meetings (one daytime/one evening/one weekend day) to solicit public comment. Description: To evaluate, make recommendations and coordinate the Town wide activities to be held to commemorate the 2501h Anniversary of the Battle of Lexington which will take place in April 2025. Deliverables: As part of its study and investigation, the committee shall: (1) develop a comprehensive plan for celebrating and promoting the 250th anniversary of the Battle of Lexington; (2) identify opportunities for individuals or organizations to participate in celebrations of the anniversary; (3) commit to diversity, inclusiveness, and opportunity at all levels and activities. Criteria for Membership: Appointments will be made by the Board of Selectmen, who will also designate a Chairman who will serve to facilitate the meetings but will not have a vote. One representative from each of the following groups will constitute this committee: • Board of Selectmen • HM l Oth Regiment of Foot • Lexington Chamber of Commerce • Lexington Historical Society • Lexington Minutemen Company • Lexington Retailers Association • Lexington School Department Designee • Music & Arts Community Designee • Tourism Committee • Town Celebrations Committee Staff Support: Department of Public Works, Economic Development Office, Fire Department, Police Department, Public Information Officer Ex Officio/Liaisons (non-voting): • Appropriation Committee • Capital Expenditures Committee • Lexington Field & Garden Club • Lexington Interfaith Clergy Association • William Diamond Jr. Fife & Drum Company Prior to serving as a member of this Committee, appointees are required to: 1. Acknowledge receipt of the Summary of the Conflict of Interest Statue. Further, to continue to serve on the Committee the member must acknowledge annually receipt of the Summary of the Conflict of Interest Statue. Said summary will be provided by and acknowledged to the Town Clerk. 2. Provide evidence to the Town Clerk that the appointee has completed the on-line training requirement required by the Conflict of Interest statue. Further, to continue to serve on the Committee, the member must acknowledge every two years completion of the on-line training requirement. Ref: Adopted by the Board of Selectmen on Board of Selectmen voted to designate as Special Municipal Employees on AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Update on Community Preservation Committee Annual Town Meeting 2020 PRESENTER: ITEM NUMBER: Joe Pato, Board of Selectmen I.12 SUMMARY: The Board's member on the Community Preservation Committee(CPC), Joe Pato, will provide a brief review of FY21 CPA projects. The CPC has reviewed 17 proposals and has voted to support 14 of these. The remaining 3 will be considered after additional information is provided to the CPC. OPEN SPACE . Daisy Wilson Meadow Preservation HISTORIC RESOURCES . Battle Green Master Plan- Phase 3 . Archives & Records Management/Records Conservation& Preservation • Restoration of Margaret Lady of Lexington Painting RECREATION • Athletic Facility Lighting • Park& Playground Improvements Sutherland • Park Improvements-Athletic Fields . Park Improvements- Hard Court Resurfacing Valley Tennis Courts • Parker Meadow Accessible Trail Construction • Wright Farm Site Access Planning and Design COMMUNITY HOUSING • Greeley Village Community Center Preservation Project • 116 Vine Street Design Funds ADMINISTRATIVE BUDGET . Administrative Budget CPA DEBT SERVICE . Projected Debt Service Deferred waiting for more information • Conservation Land Acquisition(Open Space and Community Housing) • Athletic Fields Feasibility Study(Recreation) . Farmview Supplemental#2 (Community Housing) SUGGESTED MOTION: No motion FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:10 p.m. AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Special Pernm't Residential Development Zoning Bylaw Amendment Ad Hoc Committee Update PRESENTER: ITEM Jill Hai, Special Permit Residential NUMBER: Development Zoning Bylaw Amendment Ad Hoc Committee I.13 Chair SUMMARY: Jill Hai will update the Board with the Special Permit Residential Development Zoning Bylaw Amendment Ad Hoc Committee progress to date. SUGGESTED MOTION: FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:20 p.m. AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Selectmen Committee Appointment and Reappointments PRESENTER: ITEM NUMBER: Doug Luc ente, Chair I.14 SUMMARY: Appointment Lexin2jon Bicycle Advisory Committee The Board is being asked to appoint Betty G au as a member of the Lexington Bicycle Advisory Committee to fill the unexpired term of Bob D angel with a term expiration date of September 30, 2021. Reappointments Historic Districts Commission The term of Robin Lovett, who serves as a Full Member on the Historic Districts Commission (HDC) representing Cary Memorial Library Trustees, expires at the end of December 2019. The Library Trustees support his reappointment. The term of Susan Bennett, who serves as an Associate Member on the Historic Districts Commission, expires at the end of December 2019. The LAC S, Library and Historical Society support her reappointment. SUGGESTED MOTION: Move to appoint Betty G au to the Lexington Bicycle Advisory Committee as a member for a term to expire on September 30, 2021. Move to reappoint Robin Lovett as a Full Member on the Historic Districts Commission representing the Cary Memorial Library for a term to expire December 31, 2024. Move to reappoint Susan Bennett as an Associate Member on the Historic Districts Commission for a term to Expire December 31, 2024. FOLLOW-UP: Selectmen's Office DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:25 p.m. ATTACHMENTS: Description Type D 2019 1 L-xirigton.Bi.cy(..,,I.e Advisory(AnTnittee Application........B.(.-.hu Backup IMI[aterial. APPLICATION FOR APPOINTMENT FOR BOARD/COMMITTEE MEMBERSHIP Board/Committee of Interest: 1. Bicycle Advisory Committee 2 3. 4. Would you consider another Committee: Yes For how long should we keep your application on file? 1 year Full Name: Betty G a u -- Nickname: Preferred Title (please circle) Mr./Ms./Mrs./Other: Home Address: 64 Ward Street, Lexington MA zip: 02421 Length of Residence in Lexington: 25+ years Occupation: Proposal Analyst, Finastra Corp. Work Address: Phone: Home Work Fax Cell E-mail: Primary: Secondary: If you currently serve on a Board or Committee, please identify: Special Training, Interests, Qualifications: have worked on many committees and boards, per my resume. am a current Town Meeting Member and I enjoy volunteer work, and committee work. Have you been asked by a Committee to become a member? Peggy Enders encouraged me to participate. How did you hear about the Committee? I have known of this Committee for many years. Please attach a current resume, if possible. Add any comments below or on a separate page. Signature: @�kxA,� �ani, Date: 11/1/2019 vvv� IP lf 1 Betty Gau 64 Ward Street, Lexington, MA 0242 have lived in Lexington 25+ years and, with my husband, Dave Warburton, raised 3 kids through the public schools. I am an enthusiastic, hardworking volunteer and enjoy committee work. Civic Service: • Town Meeting Member, Precinct 8, 2019—2022 • 1 have worked on several town debt-exclusion campaigns to support the new Fire Station, Department of Public Works building, and several school capital projects. My volunteer service in our schools has given me insight into our operating and capital needs. School Leadership Experience: • Hastings PTA President • Diamond PTA Treasurer • LHS Backers of Lexington Debate (BOLD) past president and current Board member Community Service includes: • Lexington 300th Celebration Incorporation Weekend committee chair • Boy Scout Troop 160 volunteer • 1 have served on the Board of LEF and worked as the Co-Chair of the Trivia Bee. I'm currently the Chair of the Trivia Bee Questions Committee (and Judge!) • Destination Imagination coach Professional Occupation: am a Proposal Manager for a global financial software company. I have a Masters in Finance from Suffolk University, Boston. Other Interests: am an avid biker, hiker and reader. AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Application: Common Victualler License - CHFP The Hangar, LLC d/b/a Craft Food Hall Project, 3 Maguire Road PRESENTER: ITEM NUMBER: Doug Luc ente, Chair I.15 SUMMARY: CFHP The Hangar, LLC d/b/a Craft Food Hall Project was approved for a Liquor License for the restaurant being built at 3 Maguire Road. The building is currently under construction. Craft Food Hall Project has submitted the necessary paperwork for the Common Vicutallers license with the hours of Monday through T hurs day 8:00 a.m. to 10:00 p.m., Friday 8:00 a.m. to 11:00 p.m., Saturday 11:00 a.m. to 11:00 p.m., and Sunday 11:00 a.m. to 10:00 p.m. The applicant has been permitted to build the restaurant and will be working with the Building, Health and Fire Departments for their respective required permits and inspections. SUGGESTED MOTION: Move to approve Common Victuallers License for Craft Food Hall Project, 3 Maguire Road for the hours of Monday through T hurs d ay 8:00 a.m. to 10:00 p.m., F rid ay 8:00 a.m. to 11:00 p.m., Saturday 11:00 a.m. to 11:00 p.m., and Sunday 11:00 a.m. to 10:00 p.m. pending final approvals from the Health Department, Building and Fire Departments. FOLLOW-UP: Selectmen's O ffic e DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:3 0 p.m. ATTACHMENTS: Description Type ......le afl d/'b/a C.raft Food 1.I.C,11.1.1.1roJect 2020(A.minmon.I..X- Backup.mllaterial. Victualler I kens e Applicatiori. qf'A q U iA to TOWN OF LEXINGTON Z8 SELECTMEN'S OFFICE Cht( � � APRIL 091" ING10 $25oDO APPLICATION FOR COMMON VICTUALLER LICENSE The Board of Selectmen issues Common Victualler licenses to establishments that cook,prepare and serve food at tables. Please fill in this form completely and return to the Selectmen's Office along with a check for$25.00 made payable to the Town of Lexington,the Workers' Compensation Insurance Affidavit form, and the declaration page of your workers compensation insurance policy. CORPORATE NAME: 0-r D/B/A*- L Des ON-SITE MANAGER NAME AND PHONE NUMBER: BUSINESS AIL DRESS: 27) LA k EMAIL ADDDRESS: HOURS: ADDITIONAL INFORMATION: AutH rued Signature Federal Identification No. or Social Security Number Submit to Selectmen's Office: 1. Application 2. Check for $25.00 (payable to Town of Lexington) 3. Workers' Compensation Insurance Affidavit (including copy of Declaration page of policy) AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Application: Entertainment License - AB Inn's LLC d/b/a The Inn at Hastings Park, 2027 Massachusetts Avenue PRESENTER: ITEM NUMBER: Doug Luc ente, Chair I.16 SUMMARY: The Inn at Hastings Park has requested an Entertainment License from the Board of Selectmen for New Year's Eve to have live music. The Town Manager has approved the Inn's request to stay open until 1:00 a.m. on January 1, 2020. SUGGESTED MOTION: Motion to approve the request of the Inn at Hastings Park for an Entertainment License for live music on New Year's Eve until 1:00 a.m. on January 1, 2020. FOLLOW-UP: Selectmen's O ffic e DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:3 5 p.m. ATTACHMENTS: Description Type A.13 11�n.'s 11...C'`c/b/a The hin.at I las fings Park. 20 1 /NY1;I�h.t .r n n-le 11. 13ackup Material 1-ic eris e Application ation '01%ell A, wV TOWN CST LEXINGTC. N � ��oc A SELECTMEN'S OFFICE DI (o2 APRIL 19TH C)) S5$ 0D APPLICATION FOR ENTERTAINMENT LICENSE The Board of Selectmen issues Entertainment licenses to establishments that have theatrical exhibitions, public shows,public amusements and exhibitions of every description(including televisions). Please fill in this form completely and return to the Selectmen's Office along with a check for$5.00 made payable to the Town of Lexington. CORPORATE NAME: A D/B/A: ON-SITE MANAGER NAME AND PHONE NUMBER: BUSINESS ADDDRESS: 2pZ, ao, A",, LP"qAr., Cal EMAIL ADDRESS: mill, TYPE OF ENTERTAINMENT: pel"-f�frVY�� -.000MIft. ADDITIONAL INFORMATION: Authorized Signature Federal Identification No. or Social Security Number Submit to Selectmen's Office: 1. Application 2. Check for $5.00 (payable to Town of Lexington) Ott ?D 19 90 INN AT AST IN GS PAKK LL-XINCTON & C.ONCORD B c S T 0 N. M -s,-\c iri u,L,r T 5 November 22,, 2019 To whom it may concern, We are currently planning our New Year's Eve celebration at The Inn at Hastings Park. We would like to have a multi-course dinner in our restaurant,Town Meeting,followed by a champagne toast at midnight. In order to do this,we request an extension for our liquor license from 11:30 PM to 1:00 AM. Thank you for your consideration. Sincerely, Trisha Pe'rez Kennealy Owner& Innkeeper 2027 MassaChuselts Ave_,., Lexincton, MA 02421 Town of Lexington a Town Manager's Office APNLI James J. Malloy,Town Manager Tel: (781) 698-4540 Kelly E. Axtell, Deputy Town Manager Fax: (781) 861-2921 December 2,2019 Ms. Trisha Perez Kennealy The Inn at Hastings Park 2027 Massachusetts Avenue Lexington, MA 02421 Dear Ms. Kennealy: Permission is given to The Inn at Hastings Park, located at 2027 Massachusetts Avenue in Lexington,, to extend the closing time to 1:00 a.m.on New Year's Day,--Wednesday,January 1,2020. Please remember that you are not to over-serve patrons and all patrons should have a safe ride home upon leaving your establishment. Lastly,please remind patrons to be respectful of the neighborhood(e.g. noise)when leaving the Inn. Sincerely, TaJam s J. Malloy n Manager JJM/cbs cc: Board of Selectmen, Fire Department,Police Department 1625 MASSACHUSETTS AVENUE*LEXINGTONt MASSACHUSETTS 02420 AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Application: Entertainment License - Starbucks Corporation d/b/a Starbucks Coffee # 866, 1729 Massachusetts Avenue PRESENTER: ITEM NUMBER: Doug Luc ente, Chair I.17 SUMMARY: The Board is being asked to approve an Entertainment License for Starbucks Corporation d/b/a Starbucks Coffee#866, 1729 Massachusetts Avenue for the purpose of providing pre-recorded background music for patrons within the restaurant. SUGGESTED MOTION: Move to approve an Entertainment License for Starbucks Corporation d/b/a Starbucks Coffee#866, 1729 Massachusetts Avenue for the purpose of providing pre-recorded background music within the restaurant. FOLLOW-UP: Selectmen's O ffic e DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:40 p.m. ATTACHMENTS: Description Type 001 �' TOWN IMF L EXINGTON SELECTMEN'S OFT ICE AM APPLICATION FOR Ix(PC) SOD ENTERTAINMENT LICENSE The Board of Selectmen issues Entertainment licenses to establishments that have theatrical exhibitions,public shows,public amusements and exhibitions of every description(including televisions). Please fill in this form completely and return to the Selectmen's Office along with a check for$5.00 made payable to the Town of Lexington. CORPORATE NAME: STARBUCKS CORPORATION D/B/A: STARBUCKS COFFEE 4;�6LU ON-SITE MANAGER NAME AND PHONE NUMBER: )k Lk �tsyekw­S N17,I BUSINESS ADDDRESS: EMAIL ADDRESS: TYPE OF ENTERTAINMENT: PRE-RECO RDED MU SIC ADDITIONAL INFORMATION: Authorized Signature Federal Identification No. or Social Security Number Submit to Selectmen's Office: 1. Application 2. Check for $5.00 (payable to Town of Lexington) AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Annual License Renewals PRESENTER: ITEM NUMBER: Doug Lucente, Chair I.18 SUMMARY Attached is a list of annual license renewals which are ready for your approval and signatures. Please note the following restaurants are listed as pending as a certificate of inspection from the Building Department is outstanding and their 2020 Liquor License will not be issued until this certificate is submitted: • Il Casale • Ixtapa Cantina . Waxy O'Connors The following establishments have confirmed they will not be renewing their Liquor Licenses: • Bulpan . Tio Juan Margaritas - Closed • Apex Wine and Spirits - Closed Please approve and sign all the licenses for the establishments and the Selectmen's office will mail out the licenses by the end of December. SUGGESTED MOTION: Move to approve and sign the license renewals identified on the attached list. FOLLOW-UP: DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 9:45 p.m. ATTACHMENTS: Description Type D I is t of 2(..)?,,0 Annual I icen.se Renewals Ready.fbr 112/110/19 130S Meeting Backt,ip Material ALL ALCOHOLIC BEVERAGES COMMON VICTUALLER Beijing Cuisine Bruegger's Bagels Bertucci's Dunkin Donuts (317 Woburn Street) Craft Food Hall Project Lexington House of Pizza Lemon Grass Panera Bread Royal India Bistro Pine Meadows Golf Club Ride Studio & Cafe Pending Completion of Documents Spice Box II Casale - Inspection Starbucks (60 Bedford Street) Ixtapa Cantina - Inspection Starbucks (1729 Mass. Ave) Waxy O'Connor's- Inspection The Upper Crust Waxy O'Connor's ALL ALCOHOLIC/IN NHOLDER COIN Inn at Hastings Park Waxy O'Connor's- 2 Pool Tables Waxy O'Connor's-Juke Box WINE AND MALT Upper Crust ENTERTAINMENT RETAIL PACKAGE GOODS STORE Ride Studio Cafe Busa Spice Box Vinebrook Bottle Starbucks (60 Bedford Street) Upper Crust ALL ALCOHOLIC CLUB Waxy O'Connor's VFW AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Water & Sewer Commitments PRESENTER: ITEM NUMBER: Doug Luc ente, Chair C.1 SUMMARY: Water and Sewer Commitment Section 3 $4,745,018.58 SUGGESTED MOTION: Motion to approve the above Water and Sewer Commitment. FOLLOW-UP: Treasurer/ Collector DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 ATTACHMENTS: Description Type Department of Public Works 'Town, of Lexington Water and Sewer Enterprise Funds FISCAL YEAR 2020 )(IN:i WATER, $210 71 7 02 0.99 2�0715020.99 SEWER $216731997.59 $21617399971.59 TOTAL: $4,11745,018.58 $417451 -58 To the Collector of Revenue for the Town of Lexington: You are hereby authorized and required to levy and collect of the persons named in the list of w,ater/sewer charges herewith,, committed to you, and each one of' his/her respective portion herein set down of the sum, total of such list. Said sum being�: fou,rmitrfon, mvie n hundred fort yfive thousand, eighteen d6trars an,d581100 And pay the same into the treasury of the Town of Lexington and to exercise the powers conferred by low in regard thereto., ............................ C� DIRECTOR OF PUBLIC WORKS BOARD OF SELECTMEN 12/16/19 Treasurer/'Collector, Director,of Public Works,Water/Sewer Billing AGENDA ITEM SUMMARY LEXINGTON BOARD OF SELECTMEN MEETING AGENDA ITEM TITLE: Water & Sewer Adjustment PRESENTER: ITEM NUMBER: Doug Luc ente, Chair C.2 SUMMARY: Adjustment to Water& Sewer as approved by W S AB 1/24/19 ( $ 3,134.70) SUGGESTED MOTION: To approve the above Water& Sewer adjustment as noted. FOLLOW-UP: Treasurer/ Collector DATE AND APPROXIMATE TIME ON AGENDA: 12/16/2019 ATTACHMENTS: Description Type FY2020 ADJUSTMENTS TO WATER/SEWER AS IRECOMMENDED BY THE WATER AND SEWER ABATEMENT BOARD 41 PAGE I OF I WSAB JANUARY'24,20,19 BOS DECEMBER 16,2019 0300827800 37 Tvrning Mill Road ($3,134.70), ($3,134-70) 926697 2019 Irrigation on domestic .......... ........--------- .......... 1 $0100 ($30 34-70) ($31134.710) It is the recommendation of the Water and Sewer Abatement Board that the Town Collector be auftrized to waive interest that has accrued on,the included herein,unless stated here otherwise,from the due date of the bill until 30,calendar days after the date of written notification to applicant of the Selectmen's action. WATER SEWER. TOTAL $0.100 ($3j,34.70) ($3,134.70) DIRECTOR OF PUBLIC WORKS BOARD,OF SELECTMEN I 2ZI 6/191 1 71" ff 41V Town of Lexington Department of' Public Works Wa ter/Se wer Division 0 Samuel Hadley Public Services Building 201 Bedford Street Lexington,, MA 02420 APRIL 19T" I N 61 1/24/2019 Maya Bober 37 'Turning Mill Road Lexington, MA 02420 RE: Location: 37 Turning Mill Road Acct #: 0300827800 Bill # 926697 Dear Cu:stomer, A request for an abatement was presented to the Town of Lexington 'Water and Sewer Abatement Board (WSAB) on 3anuary 24, 2019. The Board will recommend to the Board of Selectmen that the abatement below be made to your account: Abatement: -$3,13430 If you disagree with the Board's recommendation, you may exercise your right to appear before the Abatement Board at its next meeting 'to appeal its recommendation., If you wouI d fike to appear before the Abatement Board, please contact me with'in 15, business days from the date of this letter. If I do not hear from you within this time period, it will be deemed that the recommended abatement i's acceptable. Upon a,pprolval by the Board of Selectmen, you will be notified of its action. At that time, an adjustment in the amount, of the abatement shown above will be, aipplied, to your account. Any penalty interest that may have accrued on the, bill in question will be waived atthat time. If' you would like more information regarding the basis upon which, the Water a,nd Sewer Abatement Board's recommendation was made, please contact me at 781-2714-8370. 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